The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Date, upon the request of a Borrower, to make loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrower, which Loans (i) shall, at the option of such Borrower, be Base Rate Loans, IBOR Loans or LIBOR Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time. (b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists. (c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with an A Term Loan Commitment severally agrees, (A) in the case of each Continuing Bank, to convert into A Term Loans (as hereinafter defined), on the Restatement Effective Date, Original Term Loans made by such Continuing Bank pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date in an aggregate principal amount equal to the lesser of (x) the aggregate principal amount of such Original Term Loans made by such Continuing Bank and so outstanding or (y) such Continuing Bank's A Percentage (immediately after giving effect to the occurrence of the Restatement Effective Date) of the aggregate principal amount of Original Term Loans made by all Original Banks and outstanding on the Restatement Effective Date and/or (B) to make on the Restatement Effective Date a term loan (each, an "A Term Loan" and, collectively, the "A Term Loans") to the Borrowers, which A Term Loans (i) shall, at the option of the Borrowers, be Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type and (B) no more than two Borrowings of A Term Loans to be maintained as Eurodollar Loans may be incurred or maintained prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on a single date, on or after the Restatement Effective Date and on or prior to the fourth Business Day following the Restatement Effective Date and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) shall equal for each Bank, in initial aggregate principal amount, an amount (which, in the case of each Continuing Bank, shall include the principal amount of Loans converted pursuant to clause (A) above) which equals the A Term Loan Commitment of such Bank on the Restatement Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(ii)) and (iii) shall be joint and several obligations of each of the Borrowers. Once repaid, A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Bank with a B Term Loan Commitment severally agrees to make on the Restatement Effective Date a term loan (each, a "B Term Loan" and, collectively, the "B Term Loans") to the Borrowers, which B Term Loans (i) shall, at the option of the Borrowers, be Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type and (B) no more than two Borrowings of B Term Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of A Term Loans that are maintained as Eurodollar Loans and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) shall equal for each Bank, in initial aggregate principal amount, that amount which equals the B Term Loan Commitment of such Bank on the Restatement Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(c)(ii)) and (iii) shall be joint and several obligations of each of the Borrowers. Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a C Term Loan Commitment severally agrees to make on the Restatement Effective Date a term loan (each, a "C Term Loan" and, collectively, the "C Term Loans") to the Borrowers, which C Term Loans (i) shall, at the option of the Borrowers, be Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type and (B) no more than two Borrowings of C Term Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of A Term Loans incurred on or after the Restatement Effective Date that are maintained as Eurodollar Loans and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) shall equal for each Bank, in initial aggregate principal amount, that amount which equals the C Term Loan Commitment of such Bank on the Restatement Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(d)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(d)(ii)) and (iii) shall be joint and several obligations of each of the Borrowers. Once repaid, C Term Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Restatement Effective Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrowerthe Borrowers, which Revolving Loans (i) shall, at the option of such Borrowerthe Borrowers, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no more than two Borrowings of Revolving Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of A Term Loans incurred on or after the Restatement Effective Date that are maintained as Eurodollar Loans and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultan- eously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and time, (iv) shall not exceed in the aggregate for any Borrower all Banks at any time out- standing that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time, (v) shall not exceed in aggregate principal amount on the Restatement Effective Date, when added to the aggregate principal amount of Swingline Loans incurred on such date, an amount equal to $75,000,000 and (vi) shall be the joint and several obligations of each of the Borrowers.
(be) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, BTCo in its sole discretion, agree individual capacity agrees to make, make at any time and from time to time on and after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the BorrowerBorrowers, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal prin- cipal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non- Defaulting Banks then outstanding and the Letter of Credit Outstandings at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstandingoutstanding the Maximum Swingline Amount, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding on the Maximum Swingline Amount. Notwithstanding anything Restatement Effective Date, when added to the contrary contained in this Section 1.01(b)aggregate principal amount of Revolving Loans incurred on such date, an amount equal to $75,000,000, and (vi) shall be the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event joint and several obligations of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) each of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBorrowers.
(cf) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank BTCo may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 910) pro rata based on each such Bank's Adjusted Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank BTCo to repay the Swingline Bank BTCo for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank BTCo notwithstanding that (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time; provided that, in no event shall such Bank be required to make Revolving Loans in excess of such Bank's Revolving Loan Commitment. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrowerof the Borrowers), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Bank BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank BTCo interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder here- under for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Interco Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time agrees to time make on and after the Effective Date and prior to the Expiry Date, upon the request of Final Maturity Date a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, and collectively, the "Revolving Loans") to such the Borrower, which Loans Revolving Loans:
(i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and time; and
(iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree individual capacity agrees to make, make at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans Loans:
(i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), ; and
(iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all such Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Adjusted Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), ; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Autotote Corp)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with a Commitment severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Date, upon the request of a Borrowerloan or loans, to make loans (each a "Revolving Loan" and, and collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be either Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, ; provided that except as otherwise specifically provided in Section 1.10(b1.11(b), all Revolving Loans comprising made by all the Banks pursuant to the same Borrowing shall at all times be consist of Revolving Loans of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, hereof and (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, (y) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding and (z) the aggregate principal amount of all Competitive Bid Loans then outstanding, equals such Borrower's Borrowing Base the Total Commitment at such time.
(b) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank mayChase, in its sole discretionindividual capacity, agree agrees to make, make at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower, (each a "Swingline Loan," and, collectively, and collectively the "Swingline Loans") to the Borrower), which Swingline Loans (iv) shall, at the option of the respective Borrower, shall be made and maintained as (A) Base Rate Loans or IBOR Loans, (B) Alternate Swingline Rate Loans (provided that notwithstanding anything to on the contrary in Section 1.09 or elsewhere in this Agreementdate of any Mandatory Borrowing described below, only Interest Periods of one day shall be available in the case of all Swingline Loans maintained as IBOR giving rise to such Mandatory Borrowing shall automatically become Base Rate Loans), (iiw) may be repaid and reborrowed in accordance with the provisions hereof, (iiix) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans and all Competitive Bid Loans made by Non-Defaulting Banks then outstanding at such timeand all Letter of Credit Outstandings, an amount equal to the Adjusted Total Commitment at such time then in effect (after giving effect to any reductions to the Adjusted Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (vy) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Chase may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 911.05), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Adjusted Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) 11), and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank Chase to repay the Swingline Bank Chase for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Chase notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 57 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) any reduction in the amount of the Adjusted Total Commitment at or Total Commitment after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after Chase such date and prior to such purchase) from the Swingline Bank such participations assignments in the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 911), ; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Chase until the date as of which the respective participation assignment is purchased and, to the extent attributable to the purchased participationassignment, shall be payable to the participant assignee from and after such date of purchase. Notwithstanding anything to the contrary in this Section 1.01, Chase will not make a Swingline Loan after it has received written notice from any Bank that a Default exists.
(d) Subject to and upon the terms and conditions herein set forth, each Bank severally agrees that the Borrower may incur a Competitive Bid Loan or Competitive Bid Loans pursuant to a Competitive Bid Borrowing from time to time on and after the Effective Date and prior to the Expiry Date; provided that after giving effect to any Competitive Bid Borrowing and the use of the proceeds thereof, the aggregate outstanding principal amount of Competitive Bid Loans shall not exceed at any time outstanding, (x) the Maximum Competitive Bid Loan Amount and (y) at when combined with the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the aggregate outstanding principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to all Revolving Loans maintained as Base Rate and Swingline Loans hereunder for each day thereafter.then outstanding, plus the Letter of Credit Outstandings at such time, the Total Commitment at
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and --------------- conditions set --------------- forth herein, each Bank Lender severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), -------- 1.10
(b) all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in Lender at any time outstanding that aggregate principal amount at any time outstandingwhich, when combined added to the product of (x) such Lender's Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans Loans) then outstanding to outstanding, equals the Commitment of such Borrower at such time, such Borrower's Borrowing Base Lender at such time and (v) shall not exceed in aggregate principal amount for all Lenders at any time outstanding that aggregate principal amount which, when added to (x) the Maximum Swingline Amount. Notwithstanding anything to aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the contrary contained in this Section 1.01(b)proceeds of, and simultaneously with the incurrence of, the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event respective incurrence of Default exists and is continuing with respect to such Borrower until Revolving Loans) at such time as and (y) the Swingline Bank shall have received written notice (i) of rescission aggregate principal amount of all such notices from Swingline Loans (exclusive of Swingline Loans which are repaid with the party or parties originally delivering such noticeproceeds of, (ii) of and simultaneously with the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of incurrence of, the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings incurrence of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9)Loans) then outstanding, in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of equals the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Date, upon the request of a Borrower, agrees to make loans a term loan (each each, a "Revolving “Term Loan" ” and, collectively, the "Revolving “Term Loans"”) to such the Borrower, which Term Loans (i) shall be incurred pursuant to a single drawing on the Borrowing Date in an aggregate principal amount of not less than $100,000,000, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b)2.10(b) and subject to Section 2.06, all Term Loans comprising the same Borrowing shall at all times be of the same Type, and (iiB) unless the Administrative Agent has determined that the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), no more than two Borrowings of Term Loans to be maintained as Eurodollar Loans may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and incurred prior to the Swingline Expiry Date60th day after the Borrowing Date (or, a revolving loan or revolving loans (each a "Swingline Loan" and, collectivelyif later, the "Swingline Loans") last day of the Interest Period applicable to the Borrower, which Swingline Loans (i) shall, at the option second Borrowing of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Eurodollar Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more each of which Borrowings of Revolving Eurodollar Loans (provided that such notice shall may only have an Interest Period of one month, and the first of which Borrowings may be deemed to have been automatically given upon made no earlier than the occurrence third Business Day, and no later than the seventh Business Day, after the Borrowing Date and the second of a Default or an Event of Default under Section 9.05 or upon which Borrowings may only be made on the exercise of any last day of the remedies provided in Interest Period of the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans first such Borrowing and (each such Borrowing, a "Mandatory Borrowing"iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Commitment of such Lender on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline LoansBorrowing Date. Each such Bank hereby irrevocably agrees to make Revolving Once repaid, Term Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing incurred hereunder may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterreborrowed.
Appears in 1 contract
Sources: Credit Agreement (United Online Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Conversion Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to all Swingline Loans made to which equals the lesser of (x) the Total Commitment at such Borrower which remain outstanding, equals such Borrower's time and (y) the Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Borrower and each Bank may, in its sole discretion, agree to makethat, at any time and from time to time 9:00 A.M. (New York time) on and after the Effective Date and prior to the Swingline Expiry Conversion Date, a revolving loan the aggregate principal amount of Revolving Loans owing to such Bank and outstanding at such time shall (unless such Revolving Loans have been declared (or revolving loans (each a "Swingline Loan" andhave become) due and payable pursuant to this Agreement), collectivelywithout any notice or action by any party hereto, the "Swingline Loans") automatically convert to the Borrower, which Swingline and thereafter constitute Term Loans owing to such Bank hereunder. The Term Loans of any Bank (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Eurodollar Loans, provided that notwithstanding anything to the contrary that, except as otherwise specifically provided in Section 1.09 or elsewhere in this Agreement1.10(b), only Interest Periods all Term Loans comprising the same Borrowing shall at all times be of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, same Type and (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate initial principal amount at any time outstanding, when combined with for such Bank an amount which equals the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding owed to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and immediately prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline conversion. Once repaid, Term Loans as shall may not be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterreborrowed.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, (A) on the Second Restatement Effective Date, to convert an amount equal to such Bank's Percentage of all Original Loans outstanding on such date into Loans (defined below) and (B) at any time and from time to time on and after the Second Restatement Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Loans Loans:
(i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.;
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for the Banks at any Borrower in time outstanding that aggregate principal amount which, when added to the aggregate principal amount of Loans outstanding, equals the amount by which the Acquisition Basket Amount is reduced pursuant to clause (ii) of the definition thereof; and
(v) shall not exceed for the Banks at any time outstandingoutstanding that aggregate principal amount which, when combined with added to the aggregate principal amount of all Revolving Loans then outstanding to such Borrower plus all Letter of Credit Outstandings, equals the Total Commitment less the Acquisition Basket Amount at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Interlake Corp)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "“Revolving Loan" ” and, collectively, the "“Revolving Loans"”) to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank Lender at any time outstanding that aggregate principal amount which, when added to the product of (x) such Lender’s RL Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time, and (v) shall not exceed in aggregate principal amount at any time outstanding, when added to such Bank's Percentage (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that aggregate principal amount which equals the Commitment of such Bank ) at such time and (ivII) shall not exceed in the aggregate for any Borrower at any time that principal amount which, when added to of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank Lender may, in its sole discretion, agree to make, at any time and from time to time on and or after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "“Swingline Loan" ” and, collectively, the "“Swingline Loans"”) to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made incurred and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans (exclusive of Revolving Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) then outstanding and the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s obligation to purchase participations in outstanding Swingline Loans pursuant to Section 1.01(c), including by cash collateralizing such Defaulting Lender’s RL Percentage of the outstanding Swingline Loans, and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrower, any other Credit Party or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "“Mandatory Borrowing"”) shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such Bank's Lender’s RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's ’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing Borrowing, and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Facility (Magellan Health Services Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make loan or loans (each each, a "Revolving LoanREVOLVING LOAN" and, collectively, the "Revolving LoansREVOLVING LOANS") to such Borrowerone or more Borrowers, which Loans Revolving Loans:
(i) shall, at the option of such the requesting Borrower, be either Base Rate Loans or Eurocurrency Loans, IBOR PROVIDED that all Revolving Loans or LIBOR Loansmade as part of the same Borrowing shall, provided that except as unless otherwise specifically provided in Section 1.10(b)herein, all Loans comprising the same Borrowing shall at all times be of the same Type;
(ii) may be in Dollars or Eurocurrencies, at the option of the requesting Borrower;
(iii) may be repaid and reborrowed in accordance with the provisions hereof;
(iv) of any Bank at any time outstanding shall not have an aggregate Original Dollar Amount which, when added to the product of (x) such Bank's Percentage and (y) the sum of (I) the Original Dollar Amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the respective incurrence of, the Revolving Loans then being incurred) then outstanding and (II) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the Revolving Loans then being incurred) at such time exceeds the Revolving Loan Commitment of such Bank (after giving effect to any simultaneous reinstatement in the Revolving Loan Commitment of such Bank on such date pursuant to Section 1.01(d)(i)) at such time); and
(v) for all Banks at any time outstanding shall not have an aggregate Original Dollar Amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the Revolving Loans then being incurred) at such time, (II) the Original Dollar Amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the respective incurrence of, the Revolving Loans then being incurred) then outstanding and (III) the aggregate principal amount of all Bid Loans (exclusive of Bid Loans which are repaid with the proceeds of, and simultaneously with the respective incurrence of, the Revolving Loans then being incurred) then outstanding, exceeds the Total Revolving Loan Commitment (after giving effect to any simultaneous increase in the Total Revolving Loan Commitment on such date pursuant to Section 1.01(d)(i)) at such time.
(b) Subject to and upon the terms and conditions set forth herein, Bank of America in its individual capacity and the CAD Swingline Lender in its individual capacity each agrees (severally, not jointly) to make, at any time and from time to time on or after the Effective Date and prior to the Swingline Expiry Date, a Swingline Loan or Swingline Loans, which Swingline Loans (i) if made by Bank of America, shall be made to the Company and maintained in Dollars as Base Rate Loans or at a fixed rate (for a period not to exceed 30 days) as quoted by Bank of America and acceptable to the Company (each a "USD OFFERED RATE LOAN") and, if made by the CAD Swingline Lender, shall be made to Sealed Air (Canada) and (subject to Section 1.01(c)) maintained in Canadian Dollars as Base Rate Loans or at a fixed rate (for a period not to exceed 30 days) as quoted by the CAD Swingline Lender and acceptable to the Company (each a "CAD OFFERED RATE LOAN"), (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingan Original Dollar Amount which, when added to such Bank's Percentage the sum of (I) the Original Dollar Amount of all Revolving Loans (exclusive of Revolving Loans which are repaid with the proceeds of, and simultaneously with the respective incurrence of, the Swingline Loans then outstanding Swingline Loansbeing incurred) then outstanding, that (II) the aggregate principal amount of all Bid Loans outstanding at such time (exclusive of Bid Loans which are repaid with the proceeds of, and simultaneously with the respective incurrence of, the Swingline Loans then being incurred), (III) the Original Dollar Amount of all Swingline Loans then outstanding (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the respective incurrence of, the Swingline Loans then being incurred) and (IV) the aggregate amount of all Letter of Credit Outstandings at such time (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the Swingline Loan then being incurred), equals the Total Revolving Loan Commitment of (after giving effect to any simultaneous reinstatement in the Total Revolving Loan Commitment on such Bank date pursuant to Section 1.01(d)(i)) at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR LoansBank of America, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed the Maximum Swingline Amount and, in aggregate principal amount at any time outstandingthe case of the CAD Swingline Lender, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount an Original Dollar Amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum $50,000,000. No Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not Lender will make any a Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default exists and specifically requesting that it not make any Swingline Loans, PROVIDED that the Swingline Lenders may continue making Swingline Loans at such time thereafter as the Default in question has been cured or an Event waived in accordance with the requirements of this Agreement or the Required Banks have withdrawn the written notice described above in this sentence. In addition, no Swingline Lender shall be obligated to make any Swingline Loan at a time when a Bank Default exists unless such Swingline Lender shall have entered into arrangements satisfactory to it and is continuing the Company to eliminate such Swingline Lender's risk with respect to the Bank which is the subject of such Borrower until Bank Default, including by cash collateralizing such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) Bank's Percentage of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsoutstanding Swingline Loans.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Day, either Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank Lender may, in its sole discretion, give written notice to the Banks that its outstanding Swingline Loans (the outstanding principal amount of which (after conversion to Dollars, in the case of the CAD Swingline Lender, as contemplated below) shall be specified in such notice) shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided PROVIDED that in the case of Swingline Loans made by Bank of America such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory BorrowingMANDATORY BORROWING") shall be made, in the case of Swingline Loans made by Bank of America, on the immediately succeeding Business Day and, in the case of Swingline Loans made by the CAD Swingline Lender, on the second succeeding Business Day, in each case by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) PRO RATA based on each such Bank's Percentage (subject to the availability of Revolving Loans as provided in Section 1.01(a)(iv)), and the proceeds thereof shall be remitted applied directly to the applicable Swingline Bank and applied by the Swingline Bank Lender to repay the such Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees The CAD Swingline Lender shall, immediately prior to make Revolving Loans upon one Business Day's giving a notice pursuant to each of a Mandatory Borrowing as provided in the amount and in the manner specified in the immediately preceding sentence and on sentence, convert its outstanding Swingline Loans from Canadian Dollars to Dollars effective as of the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with using the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.U.S.
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Sealed Air Corp/De)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make loan or loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrowerone or more Borrowers, which Loans Revolving Loans:
(i) shall, at the option of such the requesting Borrower, be either Base Rate Loans, IBOR Loans or LIBOR Eurocurrency Loans, provided that except all Revolving Loans made as part of the same Borrowing shall, unless otherwise specifically provided in Section 1.10(b)herein, all Loans comprising the same Borrowing shall at all times be of the same Type, ;
(ii) may be in Dollars or other Eurocurrencies, at the option of the requesting Borrower;
(iii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iiiiv) shall not exceed for of any Bank at any time outstandingoutstanding shall not have an aggregate Original Dollar Amount which, when added to such Bank's Percentage U.S. Dollar Equivalent of all Letter of Credit Exposure (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the Revolving Loans then outstanding Swingline Loansbeing incurred) at such time, that aggregate principal amount which equals exceeds the Revolving Loan Commitment of such Bank (after giving effect to any simultaneous reinstatement in the Revolving Loan Commitment of such Bank on such date pursuant to Section 1.01(b)(i)) at such time; provided that, at the time and (iv) of making of each of such Loans, each such Loan shall not exceed in the aggregate for any Borrower at any time that amount have an Original Dollar Amount which, when added to the U.S. Dollar Equivalent of such Bank's Revolving Loans outstanding and Letter of Credit Exposure (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneous with the incurrence of, the Revolving Loans then being incurred) at such time, exceeds the Revolving Loan Commitment of such Bank (after giving effect to any simultaneous reinstatement in the Revolving Loan Commitment of such Bank on such date pursuant to Section 1.01(b)(i)) at such time; and
(v) for all Swingline Banks at any time outstanding shall not have an aggregate Original Dollar Amount which, when added to the aggregate amount of the U.S. Dollar Equivalent of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the Revolving Loans made then being incurred) at such time, exceeds the Total Revolving Loan Commitment (after giving effect to any simultaneous increase in the Total Revolving Loan Commitment on such Borrower date pursuant to Section 1.01(b)(i)) at such time; provided that, at the time of making thereof, such Loans shall not have an Original Dollar Amount which, when added to the U.S. Dollar Equivalent of the Revolving Loans of all Banks outstanding and all Letter of Credit Outstandings (exclusive of Unpaid Drawings which remain outstandingare repaid with the proceeds of, equals and simultaneously with the incurrence of, the Revolving Loans then being incurred) at such Borrower's Borrowing Base time, exceeds the Total Revolving Loan Commitment (after giving effect to any simultaneous increase in the Total Revolving Loan Commitment on such date pursuant to Section 1.01 (b)(i)) at such time.
(bi) The Company may from time to time, but no more often than once in a calendar quarter, request any Bank to agree, or to arrange for a Local Affiliate of such Bank to agree, to provide a Local Currency Commitment to any Subsidiary Borrower or to the Company (i) with respect to any currency which the Company has previously requested be designated as Eurocurrency and which request the Banks denied or (ii) if it is beneficial to the Company or such Subsidiary Borrower to avoid withholding tax to borrow Loans directly from a Bank (or a Local Affiliate of a Bank) in a foreign country, provided, that the sum of the aggregate amount of Local Currency Commitments in effect at any one time may not exceed $15,000,000 and that, at any time, there shall not exist more than 3 Local Currency Commitments outstanding. If a Bank is willing, in its sole discretion, to provide such a Local Currency Commitment, or is willing, in its sole discretion, to arrange to have a Local Affiliate of such Bank provide such a Local Currency Commitment, then such Bank and such Subsidiary Borrower or the Company, as applicable, shall execute and deliver to the Administrative Agent a Local Currency Addendum, or, if such Bank has arranged to have such Local Affiliate provide such a Local Currency Commitment, such Local Affiliate, such Bank and such Subsidiary Borrower or the Company, as applicable, shall execute and deliver to the Administrative Agent a Local Currency Designation and Assignment Agreement. Such Local Currency Commitment shall be designated in Dollars, shall not exceed such Bank's Unutilized Revolving Loan Commitment at the time when such Local Currency Commitment goes into effect and, when added to such Bank's Revolving Loan Commitment, shall not exceed such Bank's Commitment. A Bank's Revolving Loan Commitment shall be automatically reduced to the extent that such Bank or any Local Affiliate of such Bank has from time to time in effect any Local Currency Commitment and such Bank's Revolving Loan Commitment shall be automatically reinstated to the extent that any such Local Currency Commitment expires or is terminated either in whole or in part, unless at the time of such expiration or termination the Revolving Loan Commitments of all Banks have terminated (in which case such Bank's Revolving Loan Commitment shall not be reinstated to any extent), by (i) 100% of such Local Currency Commitment, if there has been no reduction in the Total Revolving Loan Commitment from the date such Local Currency Commitment went into effect or (ii) such lesser percentage of such Local Currency Commitment that equals the quotient (expressed as a percentage) obtained by dividing the Total Revolving Loan Commitment as in effect on such day by the Total Revolving Loan Commitment as in effect on the day such Local Currency Commitment went into effect, if there has been a reduction in the Total Revolving Loan Commitment from the date such Local Currency Commitment went into effect. The Bank providing (whether directly or through its Local Affiliate) such Local Currency Commitment and the relevant Subsidiary Borrower or the Company, as applicable, shall provide the Administrative Agent five Business Days prior notice of any change in the amount of any Bank's Local Currency Commitment. Promptly upon receipt of such notice, the Administrative Agent shall calculate the amount of such Bank's Revolving Loan Commitment after giving effect to such change. Upon its receipt of such notice, the Administrative Agent will notify the Company and the Banks of such change. The Company may on five Business Days' written notice to the Administrative Agent terminate in whole or in part any Local Currency Commitment from time to time provided that after giving effect to such termination, the outstanding portion of Original Dollar Amount of all Local Currency Loans under such Local Currency Commitment shall not exceed such Local Currency Commitment as so reduced.
(ii) Subject to and upon the terms and conditions set forth hereinherein and in or pursuant to the applicable Local Currency Documentation, the Swingline each Bank may, in its sole discretion, agree with a Local Currency Commitment and each Local Affiliate with a Local Currency Commitment severally agrees to make, at any time and from time to time on and or after the Effective Date and prior to the Swingline Expiry DateFinal Maturity Date (or such shorter period as may be specified in or pursuant to the applicable Local Currency Documentation), a revolving loan or revolving loans (each each, a "Swingline Local Currency Loan" and, collectively, the "Swingline Local Currency Loans") to one or more Subsidiary Borrowers or the BorrowerCompany, as applicable, specified in the applicable Local Currency Documentation, which Swingline Local Currency Loans (iA) shallshall not have an Original Dollar Amount exceeding the Local Currency Commitment specified in the applicable Local Currency Documentation; provided that, at the option time of the respective Borrower, be made and maintained as Base Rate Loans or IBOR making of each of such Loans, provided that notwithstanding anything each such Loan shall not have an Original Dollar Amount which, when added to the contrary in Section 1.09 or elsewhere in this AgreementU. S. Dollar Equivalent of all Local Currency Loans outstanding under such Local Currency Commitment at such time, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loansexceeds such Local Currency Commitment, (iiB) may be repaid and reborrowed in accordance with the provisions hereofhereof and of the applicable Local Currency Documentation, and (iiiC) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of have an Original Dollar Amount exceeding for all Revolving Loans then outstanding at Banks and all such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount Local Affiliates at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from Total Local Currency Commitment at such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or time.
(iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Each Local Currency Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing mature on such date, (iv) on or prior to the date Final Maturity Date, as the applicable Borrower and Bank or such Bank's Local Affiliate shall agree prior to the making of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on Local Currency Loan in or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.Local Currency
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Date, upon the request of a Borrower, to make loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrower, which Loans (i) shall, at the option of such Borrower, be Base Rate Loans, IBOR Loans or LIBOR Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree each Lender severally agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, make a revolving term loan or revolving term loans (each a "Swingline “Loan" ” and, collectively, the "Swingline “Loans"”) to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary shall bear interest in accordance with Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans1.07, (ii) may only be repaid incurred on a date occurring on or after the Initial Borrowing Date and reborrowed in accordance with prior to the provisions hereofCommitment Termination Date on which a Top Glory Vessel is acquired by a Subsidiary of the Borrower pursuant to the Vessel Acquisition Documents (each a “Vessel Acquisition” and collectively, the “Vessel Acquisitions”); provided that no more than two Vessel Acquisitions may be made after April 1, 2005, (iii) shall be denominated in Dollars, (iv) shall not exceed in aggregate principal amount at on any time outstanding, Borrowing Date (x) when combined with added to the aggregate principal amount of all Revolving Loans then outstanding at outstanding, an amount equal to 85% of the sum of the Appraised Value of all Top Glory Vessels acquired by the Borrower and its Subsidiaries on or prior to such timeBorrowing Date (including the Top Glory Vessels then being acquired) and (y) for any Top Glory Vessel, an amount equal to the Total Commitment at lesser of (x) 85% of the Appraised Value of such time Top Glory Vessel and (after giving effect to any reductions to y) the Total Commitment on Maximum Loan Amount for such date)Top Glory Vessel, (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal for any Lender, that amount at any time outstanding which equals the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver Commitment of such Default or Event of Default by the Required Banks or (iii) that the Agents Lender as in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages Date (determined before giving effect to any termination of the Commitments pursuant on such Borrowing Date to the last paragraph of reduction thereto required by Section 93.03). Once repaid, provided that (x) all interest payable on the Swingline Loans shall incurred hereunder may not be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterreborrowed.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and --------------- conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as -------- otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the Defaulting Bank's or Banks' participation in such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and (y) the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrower, any other Credit Party or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBanks.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon -------- the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's --- ---- RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest -------- payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and or after the Restatement Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank Lender at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to the product of (x) such Lender's Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Commitment of such Borrower's Borrowing Base Lender at such time and (v) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, make at any time and from time to time on and or after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made incurred and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in the aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Defaulting Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Defaulting Lenders' Percentage of the outstanding Swingline Loans and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrower, any other Credit Party or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing Borrowing, and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with a Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan or term loans (each, a "Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Term Loans pursuant to Section 1.06) and (ii) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the Term Loan Commitment of such Bank on any such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after giving effect to any reductions thereto prior to such date pursuant to Section 3.03(b)(i) or on or prior to such date pursuant to Section 3.03(b)(ii)). Once repaid, Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(bc) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, BTCo in its sole discretion, agree individual capacity agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter of Credit Outstandings at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), ) and (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(cd) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank BTCo may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto termination thereof pursuant to the last paragraph of Section 910) pro rata based on each such Bank's Adjusted Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank BTCo to repay the Swingline Bank BTCo for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank BTCo notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank BTCo interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Universal Compression Holdings Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with a Term Loan Commitment severally agreesagrees to make a term loan (each a "Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term Loans (i) shall be incurred by the Borrower on the Initial Borrowing Date, (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type, and (iii) shall be made by each such Bank in that aggregate principal amount which does not exceed the Term Loan Commitment of such Bank on the Initial Borrowing Date (before giving effect to the termination thereof on such date pursuant to Section 3.03(b)). Once repaid, Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees to make, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any such Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all such Banks at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with 3 the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(bc) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b1.01(c), (x) the Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the Defaulting Bank's or Banks' participation in such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and (y) the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrower, any other Credit Party or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBanks.
(cd) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its RL B▇▇▇▇ ▇▇▇t the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro RL B▇▇▇▇ ▇▇▇ rata based on each such RL Bank's RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such RL Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.date
Appears in 1 contract
Sources: Credit Agreement (Scot Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agrees, agrees to make at any time and from time to time on and or after the Effective Initial Borrowing Date and prior to the Expiry Date, upon the request of Final Maturity Date a Borrower, to make revolving loan or revolving loans (each each, a "“Revolving Loan" ” and, collectively, the "“Revolving Loans"”) to such Borrowerthe Borrowers on a joint and several basis, which Revolving Loans (i) shall, at the option of such Borrower, be Base Rate Loans, IBOR Loans or LIBOR Loans, provided that except as otherwise specifically provided shall bear interest in accordance with Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type1.07, (ii) shall be denominated in Dollars or in an Alternate Currency in each case, as elected by the Borrowers, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank such Lender at any time outstandingthat aggregate principal amount outstanding which, when added to the product of (x) such Bank's Lender’s Percentage and (y) the sum of (I) all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, that and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding equals the Commitment of such Bank Lender at such time and time, (ivv) shall not exceed in the aggregate for any Borrower all such Lenders at any time that aggregate principal amount outstanding which, when added to the sum of (I) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Loans) at such time, and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain outstandingare repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding equals such Borrower's Borrowing Base the Total Commitment at such time, and (vi) in the case of Alternate Currency Revolving Loans, shall not exceed for all Lenders at any time in aggregate principal amount (using the Dollar Equivalent thereof) outstanding, the Alternate Currency Sublimit.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and or after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "“Swingline Loan" ” and, collectively, the "“Swingline Loans"”) to the BorrowerBorrowers on a joint and several basis, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary shall bear interest in accordance with Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans1.07, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) as provided in Section 4.02(c) shall be repaid no later than the date which is five Business Days following the incurrence thereof, (v) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent of each Alternate Currency Revolving Loan then outstanding) and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (vvi) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists with respect to any Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrowers to eliminate the Swingline Lender’s risk with respect to the Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lenders’ Percentage of the outstanding Swingline Loans, and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower any Borrower, any other Credit Party or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more Borrowings of Dollar Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or Section 10.09 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Dollar Revolving Loans constituting Base Rate in an aggregate principal amount equal to such outstanding Swingline Loans (each such Borrowing, a "“Mandatory Borrowing"”) shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such Bank's Lender’s Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Dollar Revolving Loans upon one Business Day's ’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing Borrowing, and (v) the amount of the Total Commitment at such time. For the avoidance of doubt, any Swingline Loan which has been funded with one or more Mandatory Borrowings shall cease to be a Swingline Loan. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
(d) In the event that the Borrowers fail to reimburse any Issuing Lender in accordance with Section 2.04 for any Drawing paid by such Issuing Lender under any Letter of Credit issued by it, then on the date specified in Section 2.04(a), the Borrowers shall be deemed to have made a request for a borrowing of Revolving Loans in an amount equal to the Drawing with an initial Interest Period of seven days which such deemed request shall not be subject to any condition precedent set forth in Section 6 and shall be irrevocable. Each Lender acknowledges and agrees that its obligation to make its pro rata share of any such borrowing available to the Administrative Agent is absolute and unconditional and shall not be affected by any event, happening or circumstance whatsoever, including the failure of any condition precedent set forth in Section 5 to be satisfied at the time of such deemed request.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agrees, agrees to make at any time and from time to time on and or after the Effective Availability Date and prior to the Expiry Date, upon the request of Final Maturity Date a Borrower, to make revolving loan or revolving loans (each each, a "“Revolving Loan" ” and, collectively, the "“Revolving Loans"”) to such Borrowerthe Borrowers on a joint and several basis, which Revolving Loans (i) shall, at the option of such Borrower, be Base Rate Loans, IBOR Loans or LIBOR Loans, provided that except as otherwise specifically provided shall bear interest in accordance with Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type1.07, (ii) shall be denominated in Dollars or in an Alternate Currency in each case, as elected by the Borrowers, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank such Lender at any time that aggregate principal amount outstanding (for this purpose, using the Dollar Equivalent of each Alternate Currency Revolving Loan then outstanding) which, when added to the product of (x) such Bank's Lender’s Percentage and (y) the sum of (I) all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, and (II) the aggregate Swingline Loan Exposure (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank Lender at such time and (ivv) shall not exceed in the aggregate for any Borrower all such Lenders at any time that aggregate principal amount outstanding (for this purpose, using the Dollar Equivalent of each Alternate Currency Revolving Loan then outstanding) which, when added to the sum of (I) the amount of all Swingline Loans made to such Borrower Letter of Credit Outstandings (exclusive of Unpaid Drawings which remain outstandingare repaid with the proceeds of, equals such Borrower's Borrowing Base and simultaneously with the incurrence of, the respective incurrence of Loans) at such time, and (II) the aggregate Swingline Loan Exposure (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding equals the Total Commitment at such time; provided that no Alternate Currency Revolving Loan may be incurred if after giving effect thereto the Alternate Currency Outstandings would exceed the Alternate Currency Sublimit.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and or after the Effective Availability Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "“Swingline Loan" ” and, collectively, the "“Swingline Loans"”) to the BorrowerBorrowers on a joint and several basis, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary shall bear interest in accordance with Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans1.07, (ii) shall be denominated in Euros or Dollars in each case, as elected by the Borrowers, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) as provided in Section 4.02(c) shall be repaid no later than the date which is five Business Days following the incurrence thereof, (v) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent of each Alternate Currency Revolving Loan then outstanding) and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (vvi) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that no Swingline Loan denominated in Euros may be incurred if giving effect thereto the Alternate Currency Outstandings would exceed the Alternate Currency Sublimit. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists with respect to any Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrowers to eliminate the Swingline Lender’s risk with respect to the Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lenders’ Percentage of the outstanding Swingline Loans, and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower any Borrower, any other Credit Party or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or Section 10.09 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate in an aggregate principal amount equal to such outstanding Swingline Loans (each such Borrowing, a "“Mandatory Borrowing"”) shall be made on the immediately second succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such Bank's Lender’s Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one two Business Day's ’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing Borrowing, and (v) the amount of the Total Commitment at such time. For the avoidance of doubt, any Swingline Loan which has been funded with one or more Mandatory Borrowings shall cease to be a Swingline Loan. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
(d) In the event that the Borrowers fail to reimburse any Issuing Lender in accordance with Section 2.04 for any Drawing paid by such Issuing Lender under any Letter of Credit issued by it, then on the date specified in Section 2.04(a), the Borrowers shall be deemed to have made a request for a borrowing of Revolving Loans in an amount equal to the Drawing with an initial Interest Period of one month which such deemed request shall not be subject to any condition precedent set forth in Section 6 and shall be irrevocable. Each Lender acknowledges and agrees that its obligation to make its pro rata share of any such borrowing available to the Administrative Agent is absolute and unconditional and shall not be affected by any event, happening or circumstance whatsoever, including the failure of any condition precedent set forth in Section 6 to be satisfied at the time of such deemed request.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with a Term Loan Commitment severally agreesagrees to make, on the Effective Date, a term loan or term loans (each, a "Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term Loans (i) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that, except as otherwise -------- specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type, and (ii) shall not exceed for any such Bank, in aggregate principal amount, that amount which equals the Term Loan Commitment of such Bank on the Effective Date (before giving effect to the termination thereof on such date pursuant to Section 2.03(b)). Once repaid, Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as -------- otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, and (iii) shall not exceed for any such Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with an A Term Loan Commitment severally agreesagrees to make, at any time and from time to time on and after the Effective Initial Borrowing Date and on or prior to the A Term Loan Commitment Termination Date, a term loan or term loans (each, an "A Term Loan" and, collectively, the "A Term Loans") to the Borrower, which A Term Loans (i) shall, at the option of Borrower, be Base Rate Loans or Eurodollar Loans; provided that (x) except as otherwise specifically provided in Section 1.10(b), all A Term Loans comprising the same Borrowing shall at all times be of the same Type and (y) no Eurodollar Loans may be incurred prior to the Syndication Termination Date and (ii) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the A Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) or 3.03(b)(ii) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(iii) or 3.03(b)(iv)). Once repaid, A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Bank with a B Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan (each, a "B Term Loan" and, collectively, the "B Term Loans") to the Borrower, which B Term Loans (i) shall, at the option of the Borrower, be Base Rate Loans or Eurodollar Loans; provided that (x) except or otherwise specifically provided in Section 1.10(b), all B Term Loans comprising the same Borrowing shall at all times be of the same Type and (y) no Eurodollar Loans may be incurred prior to the Syndication Termination Date and (ii) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the B Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) or 3.03(c)(ii) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(c)(iii)). Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees at any time and from time to time after the date on which the Total A Term Loan Commitment has been reduced to zero and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make a loan or loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, ; provided that (x) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (y) no Eurodollar Loans may be incurred prior to the Syndication Termination Date, (ii) may be repaid and reborrowed in accordance with the provisions hereof, hereof and (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) and (II) the aggregate principal amount of all Swingline Loans then outstanding (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(bd) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, in its sole discretion, agree agrees to make, make at any time and from time to time on and after the Effective Date date on which the Total Term Loan Commitment has been reduced to zero and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower (each a "Swingline Loan," and, and collectively, the "Swingline Loans") to the Borrower), which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, ; (ii) may be repaid and reborrowed in accordance with the provisions hereof, ; (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of (x) all Revolving Loans then outstanding and (y) all Letter of Credit Outstandings at such timetime (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans), an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Revolving Loan Commitment on such date), ; and (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything The Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the contrary contained Defaulting Bank's or Banks' participation in this Section 1.01(b)such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' Percentage of the outstanding Swingline Loans. The Swingline Bank shall not make any Swingline Loan to any Borrower after it has received receiving a written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice of (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or Banks, (iii) that the Agents Administrative Agent in good faith believe believes that such Default or Event of Default no longer existshas ceased to exist or (iv) the consent of the Required Banks to make Swingline Loans notwithstanding the existence of such Default or Event of Default.
(ce) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (Loans, provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9)10, in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by from all Banks with a Revolving Loan Commitment (without giving effect to any terminations and/or reductions thereto pursuant to the last paragraph of Section 910) pro rata based on each such Bank's Percentage the basis of their respective Percentages (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank (without recourse or warranty) such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), ; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Ubiquitel Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the aggregate amount of all Swingline Loans made to Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such Borrower which remain outstandingtime, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with a Revolving Loan Commitment severally agreesagrees to continue to make, at any time and from time to time on and after the Effective Restatement Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (B) during the period from the Restatement Date to September 30, 1998 (the "Syndication Period"), no Revolving Loans shall be maintained as Eurodollar Loans with an Interest Period greater than one month, and (C) from the date on which the Agent gives notice to the Borrower of a proposed syndication (which notice may only be delivered during the Syndication Period) until the earlier of (1) the 60th day after the giving of such notice and (2) the Syndication Date, no Revolving Loans maintained as Eurodollar Loans may be incurred, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the amount of all Swingline Loans made to Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such Borrower which remain time then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time. The Borrower and the Banks acknowledge the making of the Revolving Loans which are outstanding on the Restatement Date in accordance with the terms of the Existing Atrium Credit Agreement and agree that such Revolving Loans shall continue to be outstanding pursuant to the terms and conditions of, and shall be Revolving Loans under, this Agreement and the other Loan Documents.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline each Bank may, in its sole discretion, agree with a Term Loan Commitment severally agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Restatement Date, a revolving term loan or revolving loans (each a "Swingline Term Loan" and, collectively, the "Swingline Term Loans") to the Borrower, which Swingline Loans Term Loans:
(i) shall, at the option of the respective Borrower, shall be made and initially maintained as a single Borrowing of Base Rate Loans or IBOR Loans, provided that notwithstanding anything (subject to the contrary in option to convert such Base Rate Loans pursuant to Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, 1.06); and
(ii) may shall be repaid and reborrowed made by each Bank in accordance with the provisions hereof, (iii) shall not exceed in that initial aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount as is equal to the Total Term Loan Commitment at of such time Bank on the Restatement Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) but after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments date pursuant to the last paragraph of Section 93.03(c)(ii)). Once repaid, provided that (x) all interest payable on the Swingline Term Loans shall incurred hereunder may not be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterreborrowed.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank Lender at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to the product of (x) such Lender's Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Commitment of such Borrower's Borrowing Base Lender at such time and (v) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, make at any time and from time to time on and or after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made incurred and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in the aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Defaulting Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Defaulting Lenders' Percentage of the outstanding Swingline Loans and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrower, any other Credit Party or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing Borrowing, and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and after the Original Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the aggregate amount of all Swingline Loans made to Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such Borrower which remain outstandingtime, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth hereinherein (including, on and after the initial Additional Commitment Date, Section 1.14), each Bank Lender severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrowerthe Borrowers, which Revolving Loans (i) shall be the joint and several obligations of each of the Borrowers, (ii) shall be denominated in Dollars, (iii) shall, at the option of such Borrowerthe Borrowers be incurred and maintained as, be and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) unless the Administrative Agent has otherwise determined in its sole discretion that the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), prior to the 90th day following the Effective Date, Revolving Loans may only be incurred and maintained as, and/or converted into, Eurodollar Loans so long as all such outstanding Eurodollar Loans are subject to an Interest Period of one month which begins and ends on the same day, (iiiv) may be repaid and reborrowed in accordance with the provisions hereof, (iiiv) shall not exceed for any Bank Lender at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to the product of (x) such Lender's Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Commitment of such Borrower's Borrowing Base Lender at such time and (vi) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Commitment at such time.
(b) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, make at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the BorrowerBorrowers, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date)time, (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline AmountAmount and (v) shall be the joint and several obligations of each of the Borrowers. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrowers to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Lenders' Percentage of the outstanding Swingline Loans and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrowers or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment the Lenders (without giving effect to any reductions thereto pursuant to the last paragraph of Section 910) pro rata based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding that (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrowerof the Borrowers), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Furniture Brands International Inc)
The Commitments. (ai) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Revolving Lender severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "“Revolving Loan" ” and, collectively, the "“Revolving Loans"”) to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank Revolving Lender at any time outstanding that aggregate principal amount which, when added to the product of (x) such Revolving Lender’s RL Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Revolving Lender at such time, and (v) shall not exceed in aggregate principal amount at any time outstanding, when added to such Bank's Percentage (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that aggregate principal amount which equals the Commitment of such Bank ) at such time and (ivII) shall not exceed in the aggregate for any Borrower at any time that principal amount which, when added to of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(ii) Subject to and upon the terms and conditions set forth herein, each Term Lender severally agrees to make, on the Effective Date, a single term loan (each an “Initial Term Loan” and, collectively, the “Initial Term Loans”) to the Borrower in an aggregate principal amount not to exceed such Term’s Lender respective Term Loan Commitment, which Term Loans (i) shall be denominated in Dollars and (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans; provided that all Term Loans comprising the same Term Borrowing shall at all times be of the same Type (it being understood that multiple simultaneous Term Borrowings may be made on the same date). Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank Lender may, in its sole discretion, agree to make, at any time and from time to time on and or after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "“Swingline Loan" ” and, collectively, the "“Swingline Loans"”) to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made incurred and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans (exclusive of Revolving Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) then outstanding and the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not make any Swingline Loans at a time when a Lender Default exists with respect to any Revolving Lender unless (x) the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s obligation to purchase participations in outstanding Swingline Loans pursuant to Section 1.01(c), including by cash collateralizing such Defaulting Lender’s RL Percentage of the outstanding Swingline Loans and/or (y) the reallocation contemplated by Section 4.02(A)(e)(i) shall have been effected to the extent necessary to eliminate such risk, and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks Revolving Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsRevolving Lenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Revolving Lenders that its the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "“Mandatory Borrowing"”) shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Revolving Lenders pro rata based on each such Bank's Lender’s RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Revolving Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's ’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing Borrowing, and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Revolving Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Second Restatement Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrowerthe Borrowers, which Revolving Loans (i) shall, at the option of such Borrowerthe Borrowers, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no more than one Borrowing of Revolving Loans to be maintained as Eurodollar Loans may be incurred prior to the 30th day after the Second Restatement Effective Date (which Borrowing of Eurodollar Loans may only have an Interest Period of one month, and may only be made on the Second Restatement Effective Date), (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Out- standings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and time, (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time, (v) shall not exceed in aggregate principal amount on the Second Restatement Effective Date, when added to the aggregate principal amount of Swingline Loans incurred on such date, an amount equal to $400,000,000 and (vi) shall be the joint and several obligations of each of the Borrowers.
(b) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, BTCo in its sole discretion, agree individual capacity agrees to make, make at any time and from time to time on and after the Second Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the BorrowerBorrowers, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non- Defaulting Banks then outstanding and the Letter of Credit Outstandings at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstandingoutstanding the Maximum Swingline Amount, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding on the Maximum Swingline Amount. Notwithstanding anything Second Restatement Effective Date, when added to the contrary contained in this Section 1.01(b)aggregate principal amount of Revolving Loans incurred on such date, an amount equal to $400,000,000, and (vi) shall be the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event joint and several obligations of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) each of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBorrowers.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank BTCo may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 910) pro rata based on each such Bank's Adjusted Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank BTCo to repay the Swingline Bank BTCo for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank BTCo notwithstanding that (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time; provided that, in no event shall such Bank be required to make Revolving Loans in excess of such Bank's Revolving Loan Commitment. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrowerof the Borrowers), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Bank BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank BTCo interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Furniture Brands International Inc)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no Revolving Loans maintained as Eurodollar Loans may be incurred prior to the earlier of (1) the 60th day after the Initial Borrowing Date and (2) the Syndication Date, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the amount of all Swingline Loans made to Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such Borrower which remain outstandingtime, equals such Borrower's the lesser of (x) the Borrowing Base then in effect and (y) the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make one or more loans (each each, a "Revolving Loan" and", and collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shallshall be made and maintained in Dollars, at (ii) shall be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that, on the option of such BorrowerEffective Date, Revolving Loans may only be incurred and maintained as Base Rate Loans, IBOR Loans or LIBOR (iii) if Eurodollar Loans, provided that except shall have such Interest Periods as otherwise specifically provided in are selected by the Borrower pursuant to Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type1.09, (iiiv) may be repaid and reborrowed in accordance with the provisions hereof, (iiiv) shall not exceed for any Bank Lender at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to the sum of (x) the aggregate principal amount of all other Revolving Loans made by such Lender and then outstanding and (y) the product of (A) such Lender's Percentage and (B) the sum of (1) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, Revolving Loans) at such time and (2) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Borrower's Borrowing Base Lender at such time, and (vi) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained in Dollars and as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Lenders' Percentage of the outstanding Swingline Loans and (y) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation so purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, IBOR Loans or LIBOR Loans, provided PROVIDED that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank Lender at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such BankLender's RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank Lender at such time and (iv) shall not exceed in the aggregate for any Borrower all Lenders at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Lenders' RL Percentage of the outstanding Swingline Loans and (y) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower the Borrower, any other Credit Party or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsrequisite Lenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided PROVIDED that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata Lenders PRO RATA based on each such BankLender's RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided PROVIDED that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterRate.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and --------------- conditions set --------------- forth herein, each Bank severally agreesagrees to make a loan or loans (each a "Revolving $ Loan" and, collectively, the "Revolving $ Loans") to the Company in an aggregate amount up to but not exceeding such Bank's Revolving Loan Commitment, which Revolving $ Loans:
(i) shall be made at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make loans ;
(each a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrower, which Loans (iii) shall, at the option of such Borrowerthe Company, be $ Base Rate Loans, IBOR Loans or LIBOR $ Eurodollar Loans, provided that that, except as otherwise specifically -------- provided in Section 1.10(b), all Revolving $ Loans comprising the same Borrowing shall at all times be of the same Type, ;
(iiiii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iiiiv) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time less the product of (x) such Bank's Adjusted Percentage and (ivy) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the borrowing of, Loans) at such time, (II) the aggregate principal amount of all Swingline Loans then outstanding and (III) the Dollar Equivalent Amount of Revolving Loans at such time; and
(v) shall not exceed in the aggregate for any Borrower all Banks at any time that outstanding the Total Revolving Loan Commitment at such time less the sum of (x) the aggregate amount whichof all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, when added to and simultaneously with the borrowing of, Loans) at such time, (y) the aggregate principal amount of all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base then outstanding and (z) the Dollar Equivalent Amount of Revolving Loans at such time.
(b) Subject to and upon the terms and conditions herein set forth herein, the Swingline Bank may, Chase in its sole discretion, agree to makeindividual capacity agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, to make a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, Company in an aggregate principal amount up to but not exceeding the Swingline Commitment which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as $ Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with shall not exceed at any time outstanding the provisions hereofSwingline Commitment, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with outstanding the Total Revolving $ Loan Commitment then in effect less (x) the Dollar Equivalent Amount of the aggregate principal amount of all Revolving Loans then outstanding and (y) all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid at such time with the proceeds of, and simultaneously with the occurrence of, the borrowing of Loans) at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), and (iv) shall not exceed for any Borrower may be repaid and reborrowed in aggregate principal amount at any time outstanding, when combined accordance with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amountprovisions hereof. Notwithstanding anything to the contrary contained in this Section 1.01(b), On the Swingline Bank Expiry Date, all Swingline Loans shall be repaid in full. Chase shall not make any Swingline Loan to any Borrower after it has received receiving a written notice from such Borrower the Company or the Required Banks any Bank stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Chase shall have received written notice of (i) of rescission of all such notices from the party or parties originally delivering such notice, notice (which notice of rescission such Person or Persons shall deliver to Chase promptly upon the discontinuance of such Default or Event of Default) or (ii) of the waiver of such Default or Event of Default in accordance with this Agreement. Also, Chase shall have no obligation to make any Swingline Loan in the event a Bank Default exists unless Chase has entered into arrangements satisfactory to it and the Company to eliminate Chase's risk with respect to any such Defaulting Bank's or Banks' obligations to fund Mandatory Borrowings, including by collateralizing such Defaulting Bank's or Banks' Adjusted Percentages of the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) Swingline Loans outstanding from time to time. On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Chase may, in its sole discretion, give notice to the Banks that its all then outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving $ Loans (provided that such notice shall be deemed to have been -------- automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 911.05), in which case one or more Borrowings a Borrowing of Revolving $ Loans constituting $ Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) Banks's Adjusted Percentage and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank Chase to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make such Revolving $ Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Bank Chase notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum minimum amount for a Borrowing Amount otherwise required hereunderspecified in Section 1.02, (ii) any failure to satisfy whether any conditions specified in Section 5, 6 or 7 are then satisfied, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (viv) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with in respect to any Borrowerof the Company), then each such Bank hereby agrees that it shall forthwith purchase from Chase (as of the date the Mandatory Borrowing would otherwise have occurredwithout recourse or warranty), but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after assignment, such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9)Adjusted Percentages, provided that (x) that, all interest payable on the such -------- Swingline Loans shall be for the account of the Swingline Bank Chase until the date as of which the respective participation purchase is purchased made and, to the extent attributable to the purchased participationsuch purchase, shall be payable to the participant such Bank purchasing same from and after such date of purchase.
(c) Subject to and upon the terms and conditions set forth herein, each Bank severally agrees to make a loan or loans (each a "Revolving C$ Loan" and, collectively, the "Revolving C$ Loans") to the Canadian Borrower in an aggregate amount up to but not exceeding such Bank's Revolving C$ Loan Commitment, which Revolving C$ Loans:
(i) shall be made at any time and from time to time on and after the Canadian Borrowing Date and prior to the Final Maturity Date;
(ii) may be repaid and reborrowed in accordance with the provisions hereof;
(iii) shall not exceed for any Bank at any time outstanding the Revolving C$ Loan Commitment of such Bank at such time;
(iv) shall not exceed for all Banks at any time outstanding the Total C$ Revolving Loan Commitment at such time;
(v) shall have a Dollar Equivalent Amount which shall not exceed for any Bank at any time outstanding the Revolving Loan Commitment of such Bank at such time less the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the borrowing of, Loans) at such time, (II) the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the aggregate principal amount of all Swingline Loans then outstanding and (III) the participation purchased Revolving $ Loans at such time; and
(vi) shall have a Dollar Equivalent Amount which shall not exceed for each day from all Banks at any time outstanding the Total Revolving Loan Commitment at such time less the sum of (x) the aggregate amount of the Letter of Credit Outstandings at such time (exclusive of Unpaid Drawings which are repaid with the proceeds of, and including simultaneously with the day upon which borrowing of, Loans), (y) the Mandatory Borrowing would otherwise have occurred to but excluding aggregate principal amount of all Swingline Loans then outstanding and (z) the date Revolving $ Loans at such time. The Canadian Borrower may not borrow Revolving C$ Loans more than once in any period of payment for such participation, at the overnight Federal Funds Rate for the first three days and 30 consecutive days. The Revolving C$ Loans shall bear interest at the rate otherwise applicable set forth in Section 1.08(c) (subject to Revolving Loans maintained as Base Rate Loans hereunder the provisions of Section 1.08(d)).
(d) Notwithstanding anything to the contrary contained herein, prior to the Canadian Borrowing Date (i) the Total Outstandings shall not exceed $85,000,000 and (ii) the Canadian Borrower may not borrow or have Letters of Credit issued for each day thereafterits account under this Agreement.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in Lender at any time outstanding that aggregate principal amount at any time outstandingwhich, when combined with added to (I) the aggregate principal amount of all Revolving Loans other then outstanding to Loans made by such Borrower Lender and (II) the product of (x) such Lender's Percentage and (y) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of Loans) at such time, equals the Commitment of such Borrower's Borrowing Base Lender at such time and (v) shall not exceed in aggregate principal amount for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission aggregate principal amount of all such notices from Loans then outstanding and (II) the party or parties originally delivering such notice, aggregate amount of all Letter of Credit Outstandings (ii) exclusive of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded Unpaid Drawings which are repaid with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank of, and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply simultaneously with the Minimum Borrowing Amount otherwise required hereunderincurrence of Loans) at such time, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of equals the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions --------------- set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), -------- 1.10
(b) all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in such Lender at any time outstanding that aggregate principal amount at any time outstandingwhich, when combined added to the product of (x) such Lender's RL Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans Loans) then outstanding to outstanding, equals the Revolving Loan Commitment of such Borrower Lender at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Nm Licensing LLC)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Restatement Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make a revolving loan or loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Loans Revolving Loans:
(i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (x) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, Type and (y) no Revolving Loans maintained as Eurodollar Loans may be incurred prior to the earlier of (1) the 15th day after the Restatement Effective Date and (2) the Syndication Date;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Adjusted Available Revolving Loan Commitment of such Bank at such time and time; and
(iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the sum of (I) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Available Revolving Loan Commitment at such time. Notwithstanding anything to the contrary contained in this Section 1.01(a) or elsewhere in this Agreement, no Revolving Loans may be incurred on the Restatement Effective Date.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, make at any time and from time to time on and after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans Loans:
(i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of (x) all Revolving Loans made by Non-Defaulting Banks then outstanding and (y) the Letter of Credit Outstandings at such time, an amount equal to the Adjusted Total Available Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment changes thereto on such date), ; and
(iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the The Swingline Bank shall not make any Swingline Loan to any Borrower after it has received receiving a written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice of (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in Administrative Agent's good faith believe determination that such Default or Event of Default no longer existshas ceased to exist.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded refunded with one or more Borrowings a Borrowing of Revolving Loans (provided that (x) such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910 and (y) to the extent such notice is otherwise required to be given, such notice shall be deemed to have been given on a certain day only if given before 3:00 P.M. (New York time) on such day), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to notwithstanding any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) pro rata based on each Bank's Adjusted RL Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Available Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations participation in the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective Adjusted RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations participation pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender with a Commitment severally agrees, agrees to make at any time and from time to time on and or after the Effective Initial Borrowing Date and prior to the Expiry Date, upon the request of Maturity Date a Borrower, to make revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Loans (i) shall, at the option of such Borrower, be Base Rate Loans, IBOR Loans or LIBOR Loans, provided that except as otherwise specifically provided shall bear interest in accordance with Section 1.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type1.07, (ii) shall be denominated in Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in Lender at any time that aggregate principal amount at any time outstandingoutstanding which, when combined added to the amount of such Lender's Percentage of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the aggregate principal amount proceeds of, and simultaneously with the incurrence of, the respective incurrence of all Revolving Loans then outstanding to such Borrower Loans) at such time, equals the Commitment of such Borrower's Borrowing Base Lender at such time and (v) shall not exceed in for all Lenders at any time that aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything which, when added to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the Minimum Borrowing Amount otherwise required hereunderproceeds of, (iiand simultaneously with the incurrence of, the respective incurrence of Loans) any failure to satisfy any conditions specified in Section 5at such time, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of equals the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including; provided that, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable if the Total Commitment equals $550,000,000, the aggregate amount of Loans and Letters of Credit incurred on the Swingline Loans Initial Borrowing Date shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date not exceed $37,000,000 and (y) at if the time any purchase of participations pursuant to this sentence is actually madeTotal Commitment equals $450,000,000, the purchasing Bank shall be required to pay the Swingline Bank interest aggregate amount of Loans and Letters of Credit incurred on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Initial Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterDate shall not exceed $107,000,000.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees (A) to convert, on the Restatement Effective Date, Original Revolving Loans made by such Bank to the Borrower pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date (but after giving effect to the repayment of Original Revolving Loans on such date pursuant to Section 5.05) into a Borrowing of Revolving Loans hereunder (as so converted, together with all revolving loans made pursuant to following clause (B), the "Revolving Loans" and each, a "Revolving Loan") and (B) to make, at any time and from time to time on and after the Restatement Effective Date and prior to the Expiry Final Maturity Date, upon one or more additional Revolving Loans to the request of a Borrower, all of which Revolving Loans made pursuant to make loans preceding clauses (each a "Revolving Loan" and, collectively, the "Revolving Loans"A) to such Borrower, which Loans and (B) (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's the lesser of (x) the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and (y) the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, at any time and from time to time on and after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount sum of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (ivI) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower and (II) the aggregate amount of all Letter of Credit Outstandings at such time, such Borrower's an amount equal to the lesser of (A) the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and (vB) the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the Defaulting Bank's or Banks' participation in such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and (y) the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBanks.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Borrowing Base or the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank Lender at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such BankLender's Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Available Commitment of such Bank Lender at such time time, and (iv) shall not exceed in the aggregate for any Borrower all Lenders at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Available Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and or after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Available Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (i) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Lenders' Percentage of the outstanding Swingline Loans and (ii) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iA) of rescission of all such notices from the party or parties originally delivering such notice, notice or notices or (iiB) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) Lenders pro rata based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Available Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.that
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Adjusted Available Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Available Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, BTCo in its sole discretion, agree individual capacity agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter of Credit Outstandings at such time, an amount equal to the Adjusted Total Available Revolving Loan Commitment at such time (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), ) and (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank BTCo may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 910) pro rata based on each such Bank's Adjusted Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank BTCo to repay the Swingline Bank BTCo for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank BTCo notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Available Revolving Loan Commitment or the Adjusted Total Available Revolving Loan Commitment at such time; provided that, in no event shall such Bank be required to make Revolving Loans in excess of such Bank's Revolving Loan Commitment. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their its respective Adjusted Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank BTCo interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) (i) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Revolving Lender severally agreesagrees to make, at any time and from time to time on and or after the Effective Date and prior to the Expiry Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "“Revolving Loan" ” and, collectively, the "“Revolving Loans"”) to such the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iiiii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiiv) shall not exceed for any Bank Revolving Lender at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to the product of (x) such Revolving Lender’s RL Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Borrower's Borrowing Base Revolving Lender at such time.
, and (b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iiiv) shall not exceed in aggregate principal amount at any time outstanding, when combined added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans Loans) then outstanding at such timeoutstanding, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, IBOR Loans or LIBOR Loans, provided PROVIDED that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no Borrowings of Revolving Loans to be maintained as Eurodollar Loans may be incurred prior to the Syndication Date, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, that (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding and (III) the aggregate principal amount of all Foreign Subsidiary Third Party Borrowings in excess of $15,000,000 (or the Dollar Equivalent thereof in the case of Foreign Subsidiary Third Party Borrowings incurred in a currency other than Dollars) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding and (III) the aggregate principal amount of all Foreign Subsidiary Third Party Borrowings in excess of $15,000,000 (or the Dollar Equivalent thereof in the case of Foreign Subsidiary Third Party Borrowings incurred in a currency other than Dollars) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding, (II) the aggregate principal amount of all Foreign Subsidiary Third Party Borrowings in excess of $15,000,000 (or the Dollar Equivalent thereof in the case of Foreign Subsidiary Third Party Borrowings incurred in a currency other than Dollars) then outstanding and (III) the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the Defaulting Bank's or Banks' participation in such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and (y) the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower con tinuing until such time as the Swingline Bank shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBanks.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretiondis cretion, give notice to the Banks that its the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided PROVIDED that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata PRO RATA based on each such Bank's RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably irre vocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and Borrowing, (v) the amount of the Total Revolving Loan Commitment at such time and (vi) the aggregate principal amount of all Foreign Subsidiary Third Party Borrowings outstanding at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations participa tions in the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided PROVIDED that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually actu ally made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make a loan or loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Loans Revolving Loans:
(i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that (x) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (y) unless the Agent has determined that the Syndication Date has occurred, no more than one Borrowing of Revolving Loans to be maintained as Eurodollar Loans may be incurred (whether pursuant to this Section 1.01(a) or by way of conversion pursuant to Section 1.06) prior to the 60th day after the Initial Borrowing Date (which Borrowing of Eurodollar Loans may only have an Interest Period of one month, and which Borrowing may only be made on a single date occurring on or prior to the fifth day following the Initial Borrowing Date);
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ; and
(iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Available Commitment of such Bank at such time and (iv) shall time. Notwithstanding anything to the contrary contained above, the aggregate principal amount of Revolving Loans incurred on the Initial Borrowing Date may not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time$5,000,000.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans Loans:
(i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with (x) the aggregate principal amount of all Revolving Loans then outstanding and (y) the amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Available Commitment at such time (after giving effect to any reductions to the Total Commitment thereto on such date), ; and
(iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. The Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it to eliminate the Swingline Bank's risk with respect to the Bank which is subject of such Bank Default, including by cash collateralizing such Bank's Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received receiving a written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice of (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents Agent in good faith believe believes that such Default or Event of Default no longer existshas ceased to exist.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by from all Banks with a Commitment (without giving effect to any terminations and/or reductions thereto pursuant to the last paragraph of Section 910) pro rata based on each such Bank's Percentage the basis of their respective Percentages (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted applied directly to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 55 or 6 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Available Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910); provided, provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate LoansLoans or, IBOR Loans or LIBOR subject to Section 1.15, Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) shall not exceed for any Bank such Lender at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (A) such BankLender's Percentage and (B) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank Lender at such time and (iv) shall not exceed in the aggregate for any Borrower all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender's risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender's Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as (A) the Swingline Bank Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Banks Lenders or (iiiB) that the Agents Administrative Agent in good faith believe believes that such Default or Event of Default no longer existshas ceased to exist.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) such Lenders pro rata based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments Total Revolving Loan Commitment pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterthereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders' share in such Swingline Loan.
(d) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Term Loan Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an "Incremental Term Loan" and, collectively, the "Incremental Term Loans") to the Borrower, which Incremental Term Loans: (i) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (aA) Subject to and upon the terms and conditions set --------------- forth herein, each Bank with a Revolving Loan Commitment severally agrees, agrees at any time and from time to time on and after the Restatement Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make a revolving loan or loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrowerthe Company, which Loans Revolving Loans:
(iI) shall, at the option of such Borrowerthe Company, be Base Rate Loans or Eurodollar Loans, IBOR Loans or LIBOR Loans, provided PROVIDED that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, ;
(iiII) may be repaid and reborrowed in accordance with the provisions hereof, ; and
(iiiIII) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to (A) the aggregate amount of all other outstanding Revolving Loans made by such Bank and (B) the product of (i) such Bank's Percentage of all RL Percentage, if any, and (ii) the Swingline Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans or Swingline Loans) at such time, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(bB) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Bank may, in its sole discretion, agree agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower (each each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower), which Swingline Loans Loans:
(i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day ;
(ii) shall be available denominated in the case of Swingline Loans maintained as IBOR Loans, U.S. Dollars;
(iiiii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iiiiv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal prin- cipal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, Revolving Loans or Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower then in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and effect; and
(v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the The Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the Defaulting Bank's or Banks' participation in such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans. The Swingline Bank will not make a Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received a written notice of (i) of rescission of all such notices notice from the party or parties originally delivering such notice, the same or (ii) of the a waiver of such Default or Event of Default by from the Required Banks (or (iii) that all the Agents in good faith believe that such Default or Event of Default no longer existsBanks to the extent required by Section 13.12).
(cC) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks ▇▇ ▇▇▇▇▇ that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided PROVIDED, that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata PRO RATA based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) RL Percentage, and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank directly to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 5Sections 5 or 6 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datehas occurred and is continuing, (iv) the date of such Mandatory Borrowing and (v) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with in respect to any of the Borrower), then each such Bank (other than the Swingline Bank) hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank (without recourse or warranty) such participations in assignment of the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9)RL Percentages, provided PROVIDED that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation assignment is purchased and, to the extent attributable to the purchased participationassignment, shall be payable to the participant Bank purchasing same from and after such date of purchase and (y) at the time any purchase of participations purchased assignment pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation assignment purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationassignment, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make, at any time and from time to time on and after the Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the pro- ceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower all Banks at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's Borrowing Base the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree agrees to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (viv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank shall not be obligated to make any Swingline Loans at a time when a Bank Default exists unless the Swingline Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Bank's risk with respect to the Defaulting Bank's or Banks' participation in such Swingline Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and (y) the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such the Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsBanks.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank may, in its sole discretion, give notice to the Banks that its the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's RL Percentage (determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any the Borrower), then each such Bank hereby agrees that it shall forthwith forth- with purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such the Banks to share in such Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 910), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank Lender severally agreesagrees to make, at any time and from time to time on and after the Restatement Effective Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make revolving loan or revolving loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrowerthe respective Borrowers, which Revolving Loans (i) shall, at the option of such the respective Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, IBOR Loans or LIBOR LoansPROVIDED that, provided that except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank Lender at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such BankLender's Percentage and (y) the sum of (I) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans, that ) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Commitment of such Bank Lender at such time and (iv) shall not exceed in the aggregate for any Borrower all Lenders at any time outstanding that aggregate principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans made to such Borrower (exclusive of Swingline Loans which remain are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals such Borrower's the lesser of (x) the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and (y) the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree Lender agrees to make, at any time and from time to time on and after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrowerrespective Borrowers, which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount sum of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (ivI) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower and (II) the aggregate amount of all Letter of Credit Outstandings at such time, such Borrower's an amount equal to the lesser of (A) the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and (vB) the Total Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), (x) the Swingline Bank Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Company to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Lenders' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender's or Lenders' Percentage of the outstanding Swingline Loans and (y) the Swingline Lender shall not make any Swingline Loan to any Borrower after it has received written notice from such any Borrower or the Required Banks Lenders stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Lender shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer existsLenders.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Lender may, in its sole discretion, give notice to the Banks Lenders that its the Swingline Lender's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided PROVIDED that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 910), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata Lenders PRO RATA based on each such BankLender's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910) and the proceeds thereof shall be remitted to the Swingline Bank and applied directly by the Swingline Bank Lender to repay the Swingline Bank Lender for such outstanding Swingline Loans. Each such Bank Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy whether any conditions specified in Section 56 are then satisfied, (iii) any whether a Default or an Event of Default existing on such datethen exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Borrowing Base or the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks the Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 910), provided PROVIDED that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank Lender shall be required to pay the Swingline Bank Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
Sources: Credit Agreement (Neff Corp)
The Commitments. (a) Subject to to, and upon the terms and conditions set --------------- forth herein, each Bank with a Term Loan Commitment severally agreesagrees to make, on the Initial Borrowing Date, a single term loan (each, a "Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term Loans:
(i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Base Rate Loans pursuant to Section 2.06); and
(ii) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 4.03(b)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 4.03(b)(ii)).
(b) Subject to, and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make a loan or loans (each a "Revolving Loan" and, collectively, the "Revolving Loans") to such the Borrower, which Loans Revolving Loans:
(i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, ; provided that except as otherwise specifically provided in Section 1.10(b2.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed for any Bank at any time outstandingoutstanding that aggregate principal amount which, when added to the product of (x) such Bank's Percentage and (y) the aggregate amount of all then outstanding Swingline Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of, Revolving Loans) at such time, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.; and
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall, at the option of the respective Borrower, be made and maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for all Banks at any Borrower in time outstanding that aggregate principal amount at any time outstandingwhich, when combined with added to the aggregate principal amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans then outstanding to such Borrower Loans) at such time, such Borrower's equals the lesser of (a) the Borrowing Base at such time then in effect and (vb) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Total Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agreesagrees to make a loan or loans (each a "Revolving $ Loan" and, collectively, the "Revolving $ Loans") to the Company in an aggregate amount up to but not exceeding such Bank's Revolving Loan Commitment, which Revolving $ Loans:
(i) shall be made at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Expiry Final Maturity Date, upon the request of a Borrower, to make loans ;
(each a "Revolving Loan" and, collectively, the "Revolving Loans") to such Borrower, which Loans (iii) shall, at the option of such Borrowerthe Company, be $ Base Rate Loans, IBOR Loans or LIBOR $ Eurodollar Loans, provided that that, except as otherwise specifically provided in Section 1.10(b), all Revolving $ Loans comprising the same Borrowing shall at all times be of the same Type, ;
(iiiii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iiiiv) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time less the product of (x) such Bank's Adjusted Percentage and (ivy) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the borrowing of, Loans) at such time, (II) the aggregate principal amount of all Swingline Loans then outstanding and (III) the Dollar Equivalent Amount of Revolving Loans at such time; and C/M 11752.0000 414856.1
(v) shall not exceed in the aggregate for any Borrower all Banks at any time that outstanding the Total Revolving Loan Commitment at such time less the sum of (x) the aggregate amount whichof all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, when added to and simultaneously with the borrowing of, Loans) at such time, (y) the aggregate principal amount of all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base then outstanding and (z) the Dollar Equivalent Amount of Revolving Loans at such time.
(b) Subject to and upon the terms and conditions herein set forth herein, the Swingline Bank may, Chase in its sole discretion, agree to makeindividual capacity agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, to make a revolving loan or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, Company in an aggregate principal amount up to but not exceeding the Swingline Commitment which Swingline Loans (i) shall, at the option of the respective Borrower, shall be made and maintained as $ Base Rate Loans or IBOR Loans, provided that notwithstanding anything to the contrary in Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day shall be available in the case of Swingline Loans maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with shall not exceed at any time outstanding the provisions hereofSwingline Commitment, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with outstanding the Total Revolving $ Loan Commitment then in effect less (x) the Dollar Equivalent Amount of the aggregate principal amount of all Revolving Loans then outstanding and (y) all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid at such time with the proceeds of, and simultaneously with the occurrence of, the borrowing of Loans) at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), and (iv) shall not exceed for any Borrower may be repaid and reborrowed in aggregate principal amount at any time outstanding, when combined accordance with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amountprovisions hereof. Notwithstanding anything to the contrary contained in this Section 1.01(b), On the Swingline Bank Expiry Date, all Swingline Loans shall be repaid in full. Chase shall not make any Swingline Loan to any Borrower after it has received receiving a written notice from such Borrower the Company or the Required Banks any Bank stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank Chase shall have received written notice of (i) of rescission of all such notices from the party or parties originally delivering such notice, notice (which notice of rescission such Person or Persons shall deliver to Chase promptly upon the discontinuance of such Default or Event of Default) or (ii) of the waiver of such Default or Event of Default in accordance with this Agreement. Also, Chase shall have no obligation to make any Swingline Loan in the event a Bank Default exists unless Chase has entered into arrangements satisfactory to it and the Company to eliminate Chase's risk with respect to any such Defaulting Bank's or Banks' obligations to fund Mandatory Borrowings, including by collateralizing such Defaulting Bank's or Banks' Adjusted Percentages of the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) Swingline Loans outstanding from time to time. On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below)Day, the Swingline Bank Chase may, in its sole discretion, give notice to the Banks that its all then outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving $ Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 911.05), in which case one or more Borrowings a Borrowing of Revolving $ Loans constituting $ Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.C/M 11752.0000 414856.1
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set --------------- forth herein, each Bank severally agrees, (A) in the case of each Continuing Bank, to convert into Revolving Loans, on the Restatement Effective Date, Existing Revolving Loans made by such Continuing Bank to the Borrower pursuant to the Existing Credit Agreement and outstanding on the Restatement Effective Date in an aggregate principal amount equal to the amount set forth on Schedule I and/or (B) at any time and from time to time on and after the Restatement Effective Date and prior to the Expiry Revolving Loan Maturity Date, upon the request of a Borrower, to make a revolving loan or revolving loans (each each, a "Revolving Loan" ", and, collectively, the "Revolving Loans") to such the Borrower, which Revolving Loans (i) shall, at the option of such the Borrower, be Base Rate Loans, IBOR Loans or LIBOR Eurodollar Loans, provided that that, (x) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, and (iiy) at any given time, no more than one Borrowing of Eurodollar Loans may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding, when added to such Bank's Percentage of all then outstanding Swingline Loans, that aggregate principal amount which equals the Commitment of such Bank at such time and (iv) shall not exceed in the aggregate for any Borrower at any time that amount which, when added to all Swingline Loans made to such Borrower which remain outstanding, equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Bank may, in its sole discretion, agree to make, at any time and from time to time on and after the Effective Date and incurred prior to the Swingline Expiry DateMarch 1, a revolving loan 2000 (which Borrowing may only have an Interest Period of one or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to two weeks as selected by the Borrower, which Swingline Loans (i) shallprovided however, at in the option event the Borrower has elected to convert any Borrowing of the respective Borrower, be made and maintained as Base Rate Loans or IBOR into Eurodollar Loans, provided that notwithstanding anything to the contrary in then no additional Borrowings of Eurodollar Loans under this Section 1.09 or elsewhere in this Agreement, only Interest Periods of one day 1.01 shall be available in the case of Swingline Loans maintained as IBOR Loanspermitted), (ii) may be repaid and reborrowed in accordance with the provisions hereof, hereof and (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding at such time, an amount equal to the Total Commitment at such time (after giving effect to any reductions to the Total Commitment on such date), (iv) shall not exceed for any Borrower in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding to such Borrower at such time, such Borrower's Borrowing Base at such time and (v) shall not exceed in aggregate principal amount Bank at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(b), the Swingline Bank shall not make any Swingline Loan to any Borrower after it has received written notice from such Borrower or the Required Banks stating that a Default or an Event of Default exists and is continuing with respect to such Borrower until such time as the Swingline Bank shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, (ii) of the waiver of such Default or Event of Default by the Required Banks or (iii) that the Agents in good faith believe that such Default or Event of Default no longer exists.
(c) On any Business Day and in any case within 7 Business Days of the making of any such Swingline Loan (provided that any failure to give such notice within such seven Business Day period shall not effect the obligation of the respective Borrower or any other Bank to accept such notice and fund the Revolving Loan or Revolving Loans referred to below), the Swingline Bank maywhich, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings case of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately succeeding Business Day by all Banks with a Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 9) pro rata based on each such Continuing Bank's Percentage (determined before --- ---- giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9) and the proceeds thereof shall be remitted to the Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) any failure to satisfy any conditions specified in Section 5, (iii) any Default or Event of Default existing on such date, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each such Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received by the Swingline Bank from the respective Borrower on or after such date and prior to such purchase) from the Swingline Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Commitments pursuant to the last paragraph of Section 9), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Bank until the date as of which the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Bank shall be required to pay the Swingline Bank interest on include the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Existing Revolving Loans maintained as Base Rate Loans hereunder for each day thereafterconverted pursuant to clause (A) above) that aggregate principal amount which equals the Revolving Loan Commitment of such Bank at such time.
Appears in 1 contract