Procedure for Swing Line Borrowing. (a) The Borrower may borrow under the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower shall give the Swing Line Lender and the Administrative Agent irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date specifying the amount of the requested Swing Line Loan which shall be in an aggregate minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by 1:00 P.M., New York City time, on the Borrowing Date by crediting the account of the Borrower at such office with such proceeds. The Borrower may at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. (b) The Swing Line Lender shall, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) and on the earlier of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8, request each Lender (including the Swing Line Lender) to make a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Credit Commitment Percentage of the principal amount of such Swing Line Loan. Unless any of the events described in paragraph (f) of Section 8 shall have occurred with respect to the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's office specified in or pursuant to subsection 11.2 prior to 11:00 A.M., New York City time, in funds immediately available in Dollars on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line Note. The Borrower authorizes the Swing Line Lender to charge the Borrower's accounts with the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the amount of its outstanding Swing Line Loans to the extent amounts received from the Lenders are not sufficient to repay in full such outstanding Swing Line Loans. (c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans. (d) If prior to the making of a Revolving Credit Loan pursuant to paragraph (b) of subsection 2.19 one of the events described in paragraph (f) of Section 8 shall have occurred and be continuing with respect to the Borrower, each Lender will, on the date such Revolving Credit Loan was to have been made pursuant to the notice in subsection 2.19, purchase an undivided participating interest in the outstanding Swing Line Loans in an amount equal to (i) its Revolving Credit Commitment Percentage times (ii) the aggregate principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount. (e) Whenever, at any time after any Lender has purchased a participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it. (f) Each Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(b) and to purchase participating interests pursuant to subsection 2.19(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any Subsidiary or any other Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Kmart Corp)
Procedure for Swing Line Borrowing. (a) The Refunding of Swing Line --------------------------------------------------------------- Loans. ----- Whenever such Borrower may borrow under desires that the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower Bank make Swing Line Loans it shall give the Swing Line Lender and the Administrative Agent Bank irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time) Bank not later than 11:00 A.M. on a Business Day on the requested Borrowing Date proposed borrowing date), specifying (i) the amount of to be borrowed and (ii) the requested borrowing date (which shall be a Business Day during the Commitment Period). Each borrowing under the Swing Line Loan which Commitment shall be in an aggregate minimum amount of equal to $5,000,000 250,000 or a whole multiple of $1,000,000 250,000 in excess thereof. The proceeds Not later than 1:00 P.M. on a Business Day on the borrowing date specified in a notice in respect of Swing Line Loans, the Swing Line Bank shall make available to the Administrative Agent, at the address set forth opposite the Administrative Agent's name on the signature page hereof or at such account in London as the Administrative Agent shall specify to such Borrower and the Banks, an amount in immediately available funds equal to the amount of the Swing Line Loan will to be made available by the Swing Line Lender to Bank. The Administrative Agent shall make the Borrower at the office proceeds of the such Swing Line Lender by 1:00 P.M., New York City time, Loan available to such Borrower on the Borrowing Date by crediting the account of the Borrower at such office with such proceedsborrowing date in immediately available funds. The Borrower may Swing Line Bank, at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date its sole and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shallabsolute discretion may, on behalf of the such Borrower (which hereby irrevocably directs the Swing Line Lender Bank to act on its behalf) and ), on one Business Day's notice given by the earlier of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) Bank no later than 11:00 A.M. on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8a Business Day, request each Lender (including the Swing Line Lender) Bank to make make, and each Bank hereby agrees to make, a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Credit Bank's Commitment Percentage of the principal aggregate amount of the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date of such notice, to repay the Swing Line Bank. Each Bank shall make the amount of such Swing Line Loan. Unless any of the events described in paragraph (f) of Section 8 shall have occurred with respect to the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's funding office specified in or pursuant to subsection 11.2 prior to 11:00 A.M., New York City time, in funds immediately available in Dollars funds, not later than 1:00 on the a Business Day, one Business Day next succeeding after the date of such notice is givennotice. The proceeds of such Revolving Credit Loans shall be immediately applied made available by the Administrative Agent to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line NoteBank for application by the Swing Line Bank to the repayment of the Refunded Swing Line Loans. The Such Borrower irrevocably authorizes the Swing Line Lender Bank to charge the such Borrower's accounts with the Swing Line Lender Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of its outstanding such Refunded Swing Line Loans to the extent amounts received from the Lenders Banks are not sufficient to repay in full such outstanding Refunded Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans.
(d) . If prior to the making of time a Revolving Credit Loan would have otherwise been made pursuant to paragraph (b) of subsection 2.19 Section 2.6(b), one of the events described in paragraph (fSection 8(d) of Section 8 shall have occurred and be continuing with respect to such Borrower or if for any other reason, as determined by the BorrowerSwing Line Bank in its sole discretion, Loans may not be made as contemplated by Section 2.6(b), each Lender willBank shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in subsection 2.19Section 2.6(b) (the "Refunding Date"), purchase for cash an undivided participating interest in the then outstanding Swing Line Loans in by paying to the Swing Line Bank an amount (the "Swing Line Participation Amount") equal to (i) its Revolving Credit such Bank's Commitment Percentage times (ii) the sum of the aggregate principal amount of Swing Line Loans then outstandingoutstanding which were to have been repaid with such Loans. Each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after any Lender has purchased a participating interest in a the Swing Line LoanBank has received from any Bank such Bank's Swing Line Participation Amount, the Swing Line Lender Bank receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender Bank will distribute to such Lender Bank its participating interest in such amount Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Bank's participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Bank's pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due); provided, however, that in the event that such payment received by the Swing Line Lender Bank is required to be returned, such Lender Bank will return to the Swing Line Lender Bank any portion thereof previously distributed to it by the Swing Line Lender to it.
(f) Bank. Each LenderBank's obligation to make the Revolving Credit Loans referred to in subsection 2.19(bSection 2.6(b) and to purchase participating interests pursuant to subsection 2.19(dSection 2.6(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-offsetoff, counterclaim, recoupment, defense or other right which such Lender Bank or the such Borrower may have against the Swing Line LenderBank, the such Borrower or any other Person for any reason whatsoever, ; (ii) the occurrence or continuance of a Default or an Event of Default, Default or the failure to satisfy any of the other conditions specified in Section 5; (iii) any adverse change in the condition (financial or otherwise) of the such Borrower, ; (iv) any breach of this Agreement or any other Loan Document by the such Borrower, any Subsidiary other party to this credit facility or any other Lender, Bank; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Eplus Inc)
Procedure for Swing Line Borrowing. REFUNDING OF SWING LINE LOANS.
(a) The Whenever the Borrower may borrow under desires that the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower Lender make Swing Line Loans it shall give the Swing Line Lender and the Administrative Agent irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender prior to 12:00 Noonnot later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) on the amount to be borrowed and (ii) the requested Borrowing Date specifying (which shall be a Business Day during the amount of Revolving Credit Commitment Period). Each borrowing under the requested Swing Line Loan which Commitment shall be in an aggregate minimum amount of equal to $5,000,000 250,000 or a whole $100,000 multiple of $1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by 1:00 Not later than 3:00 P.M., New York City time, on the Borrowing Date by crediting specified in a notice in respect of Swing Line Loans, the account Swing Line Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Borrower at such office with such proceedsSwing Line Loan to be made by the Swing Line Lender. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the Borrower may on such Borrowing Date in immediately available funds.
(b) The Swing Line Lender, at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date its sole and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shallabsolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) and ), on one Business Day's notice given by the earlier of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) on the date on which Lender no later than 1:00 P.M., New York City time to the Revolving Credit Commitments shall terminate pursuant to Section 8Lenders and the Borrower, request each Revolving Credit Lender (including the Swing Line Lender) to make make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Revolving Credit Commitment Lender's Revolving Credit Percentage of the principal aggregate amount of such the Swing Line LoanLoans (the "REFUNDED SWING LINE LOANS") outstanding on the date of such notice, to repay the Swing Line Lender. Unless any of the events described in paragraph (f) of Section 8 shall have occurred with respect to the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Each Revolving Credit Lender shall make the proceeds amount of its such Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's office specified Funding Office in or pursuant to subsection 11.2 prior to 11:00 immediately available funds, not later than 10:00 A.M., New York City time, in funds immediately available in Dollars on the one Business Day next succeeding after the date of such notice is givennotice. The proceeds of such Revolving Credit Loans shall be immediately applied made available by the Administrative Agent to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line NoteLender for application by the Swing Line Lender to the repayment of the Refunded Swing Line Loans. The Borrower irrevocably authorizes the Swing Line Lender to charge the Borrower's accounts with the Swing Line Lender Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of its outstanding such Refunded Swing Line Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full such outstanding Refunded Swing Line LoansLoans and the Administrative Agent agrees to promptly notify the Borrower after any such charge, PROVIDED that the failure to give such notice shall not affect the validity of such charge and payment.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans.
(d) If prior to the making of time a Revolving Credit Loan would have otherwise been made pursuant to paragraph (b) of subsection 2.19 Section 2.7(b), one of the events described in paragraph (fSection 8(f) of Section 8 shall have occurred and be continuing with respect to the BorrowerBorrower or if for any other reason, as determined by the Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each Revolving Credit Lender willshall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in subsection 2.19Section 2.7(b) (the "REFUNDING DATE"), purchase for cash an undivided participating interest in the then outstanding Swing Line Loans in by paying to the Swing Line Lender an amount (the "SWING LINE PARTICIPATION AMOUNT") equal to (i) its such Revolving Credit Commitment Lender's Revolving Credit Percentage times TIMES (ii) the sum of the aggregate principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer outstanding which were to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to have been repaid with such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amountRevolving Credit Loans.
(ed) Whenever, at any time after any the Swing Line Lender has purchased a participating interest in a received from any Revolving Credit Lender such Lender's Swing Line LoanParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to such Revolving Credit Lender its participating interest in such amount Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Revolving Credit Lender's participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Revolving Credit Lender's PRO RATA portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due); providedPROVIDED, howeverHOWEVER, that in the event that such payment received by the Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender to itLender.
(fe) Each Revolving Credit Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(bSection 2.7(b) and to purchase participating interests pursuant to subsection 2.19(dSection 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-offsetoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, ; (ii) the occurrence or continuance of a Default or an Event of Default, Default or the failure to satisfy any of the other conditions specified in Section 5; (iii) any adverse change in the condition (financial or otherwise) of the Borrower, ; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any Subsidiary other Loan Party or any other Revolving Credit Lender, ; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) If the Issuing Lender notifies the Borrower of a draft presented under any Letter of Credit (and paid by the Issuing Lender) after 1:00 PM on any given day, the Swing Line Lender will use commercially reasonable efforts to fund a Swing Line Loan on such day.
Appears in 1 contract
Sources: Credit Agreement (Tsi Finance Inc)
Procedure for Swing Line Borrowing. (a) The Each Parent Borrower may borrow under the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the such Parent Borrower shall give the Swing Line Lender and the Administrative Agent 40 34 irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon10:00 A.M., New York City San Francisco time) on the requested Borrowing Date specifying the amount of the requested Swing Line Loan which shall be in an aggregate minimum amount of $5,000,000 500,000 or a whole multiple of $1,000,000 50,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the relevant Parent Borrower at the office of the Swing Line Lender by 1:00 P.M., New York City 12:00 Noon (San Francisco time, ) on the Borrowing Date by crediting the account of the such Parent Borrower at such office with such proceeds. The Borrower Parent Borrowers may at any time and from time to time time, prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City 11:00 A.M. (San Francisco time, ) on any Business Day of the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 500,000 or a whole multiple of $1,000,000 50,000 in excess thereof.
(b) The Swing Line Lender shallLender, at any time in its sole and absolute discretion may, on behalf of the Borrower Parent Borrowers (which hereby irrevocably directs direct the Swing Line Lender to act on its their behalf) and on the earlier of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8, request each Revolving Lender (including the Swing Line Lender) to make a Revolving Credit Loan (which shall be an ABR a Base Rate Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Credit Revolving Lender's Revolving Commitment Percentage of the aggregate principal amount of such the Swing Line LoanLoans outstanding on the date such notice is given (the "Outstanding Swing Line Loans"). Unless any of the events described in paragraph (f) of Section 8 10 shall have occurred with respect to the a Parent Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 3.11 shall apply) each Revolving Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's office specified in or pursuant to subsection 11.2 Payment Office prior to 11:00 A.M., New York City A.M. (San Francisco time, ) in funds immediately available in Dollars on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the relevant outstanding Swing Line LoanLoans. Effective on the day such Revolving Credit Loans are made, the relevant portion of the Swing Line Loan Loans so paid shall no longer be outstanding as a Swing Line Loan Loans and shall no longer be due under the Swing Line Note. The Each Parent Borrower authorizes the Swing Line Lender to charge the such Parent Borrower's accounts with the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the amount of its outstanding Swing Line Loans to the extent amounts received from the Revolving Lenders are not sufficient to repay in full such outstanding Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not be obligated to make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 7.3 have not been satisfied in connection with the making of such Swing Line Loanssatisfied.
(d) If prior to the making of a Revolving Credit Loan pursuant to paragraph (b) of subsection 2.19 3.12 one of the events described in paragraph (f) of Section 8 10 shall have occurred and be continuing with respect to the a Parent Borrower, each Revolving Lender will, on the date such Revolving Credit Loan was to have been made pursuant to the notice in subsection 2.193.12, purchase an undivided participating interest in the outstanding Swing Line Loans in an amount equal to (i) its Revolving Credit Commitment Percentage times (ii) the aggregate principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Revolving Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after any Revolving Lender has purchased a participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Revolving Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Revolving Lender's participating interest was outstanding and funded); provided, however, that in the 41 35 event that such payment received by the Swing Line Lender is required to be returned, such Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each Revolving Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(b3.12(b) and to purchase participating interests pursuant to subsection 2.19(d3.12(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender or the Borrower Parent Borrowers may have against the Swing Line Lender, the Borrower Parent Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the a Parent Borrower, (iv) any breach of this Agreement or any other Loan Document by the a Parent Borrower, any Subsidiary or any other Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Young & Rubicam Inc)
Procedure for Swing Line Borrowing. Refunding of Swing line Loans.
(a) The Whenever a Borrower may borrow under desires that the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower line Lender make Swing line Loans it shall give the Swing Line line Lender and the Administrative Agent irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line line Lender prior to 12:00 Noonnot later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) on the amount to be borrowed and (ii) the requested Borrowing Date specifying (which shall be a Business Day during the amount of Revolving Commitment Period). Each borrowing under the requested Swing Line Loan which line Commitment shall be in an aggregate minimum amount of equal to $5,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by 1:00 Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swing line Loans, the Swing line Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swing line Loan to be made by crediting the Swing line Lender. The Administrative Agent shall make the proceeds of such Swing line Loan available to the applicable Borrower on such Borrowing Date by depositing such proceeds in the account of such Borrower with the Borrower at Administrative Agent on such office with such proceeds. Borrowing Date in immediately available funds.
(b) The Borrower may Swing line Lender, at any time and from time to time prepay in its sole and absolute discretion may, on behalf of the Borrowers (which hereby irrevocably direct the Swing Line Loansline Lender to act on its behalf), in whole or in part, without premium or penalty, on one Business Days’ notice given by notifying the Swing Line line Lender prior to no later than 12:00 Noon, New York City time, on any Business Day of the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shall, on behalf of the Borrower (which hereby irrevocably directs the Swing Line request each Revolving Lender to act on its behalf) make, and on the earlier of (i) the fifth Business Day following the Borrowing Date with respect each Revolving Lender hereby agrees to any Swing Line Loan or (ii) on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8make, request each Lender (including the Swing Line Lender) to make a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Credit Commitment Revolving Lender’s Revolving Percentage of the principal aggregate amount of the Swing line Loans (the “Refunded Swing line Loans”) outstanding on the date of such notice, to repay the Swing Line Loanline Lender. Unless any of the events described in paragraph (f) of Section 8 shall have occurred with respect to the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Each Revolving Lender shall make the proceeds amount of its such Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's office specified Funding Office in or pursuant to subsection 11.2 prior to 11:00 immediately available funds, not later than 10:00 A.M., New York City time, in funds immediately available in Dollars on the one Business Day next succeeding after the date of such notice is givennotice. The proceeds of such Revolving Credit Loans shall be immediately applied made available by the Administrative Agent to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line Noteline Lender for application by the Swing line Lender to the repayment of the Refunded Swing line Loans. The Borrower authorizes Borrowers irrevocably authorize the Swing Line line Lender to charge the Borrower's Borrowers’ accounts with the Swing Line Lender Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of its outstanding such Refunded Swing Line line Loans to the extent amounts received from the Revolving Lenders are not sufficient to repay in full such outstanding Refunded Swing Line line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans.
(d) If prior to the making of time a Revolving Credit Loan would have otherwise been made pursuant to paragraph (b) of subsection 2.19 Section 2.4(b), one of the events described in paragraph (fSection 8(f) of Section 8 shall have occurred and be continuing with respect to any Borrower or if for any other reason, as determined by the BorrowerSwing line Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.4(b), each Revolving Lender willshall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in subsection 2.19Section 2.4(b), purchase for cash an undivided participating interest in the then outstanding Swing Line line Loans in by paying to the Swing line Lender an amount (the “Swing line Participation Amount”) equal to (i) its such Revolving Credit Commitment Lender’s Revolving Percentage times (ii) the sum of the aggregate principal amount of Swing Line line Loans then outstanding. Each Lender will immediately transfer outstanding that were to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to have been repaid with such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amountRevolving Loans.
(ed) Whenever, at any time after any the Swing line Lender has purchased a participating interest in a received from any Revolving Lender such Lender’s Swing Line Loanline Participation Amount, the Swing Line line Lender receives any payment on account thereofof the Swing line Loans, the Swing Line line Lender will distribute to such Lender its participating interest in such amount Swing line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Lender’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing line Loans then due); provided, however, that in the event that such payment received by the Swing Line line Lender is required to be returned, such Revolving Lender will return to the Swing Line line Lender any portion thereof previously distributed to it by the Swing Line Lender to itline Lender.
(fe) Each Revolving Lender's ’s obligation to make the Revolving Credit Loans referred to in subsection 2.19(bSection 2.4(b) and to purchase participating interests pursuant to subsection 2.19(dSection 2.4(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, including (i) any set-offsetoff, counterclaim, recoupment, defense or other right which that such Revolving Lender or the any Borrower may have against the Swing Line line Lender, the any Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of DefaultDefault or the failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the condition (financial or otherwise) of the any Borrower, (iv) any breach of this Agreement or any other Loan Document by the any Borrower, any Subsidiary other Loan Party or any other Lender, Revolving Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement
Procedure for Swing Line Borrowing. Refunding of Swing Line ---------------------------------------------------------------- Loans.
(a) The Borrower may borrow under Whenever the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided Company desires that the Borrower shall give the relevant Swing Line Lender and ----- make Swing Line Loans to it, the Administrative Agent Company shall give such Swing Line Lender irrevocable telephonic notice (which telephonic notice must be received by the such Swing Line Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date specifying the amount of the requested Swing Line Loan which shall be in an aggregate minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by not later than 1:00 P.M., New York City time, on the proposed Borrowing Date) confirmed promptly in writing (with a copy to the Administrative Agent), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Credit Commitment Period); provided, that the presentation by crediting any third party of any check or draft drawn on the account of the Borrower at Company or any other borrowing by way of overdraft being deemed to constitute a notice of borrowing of Swing Line Loans by the Company in the amount of such office check, draft or other borrowing, to the extent that insufficient funds are then available for the payment thereof in the account of the Company with the relevant Swing Line Lender and so long as the amount and currency with respect to such proceedsdeemed notice of borrowing are in compliance with the terms of this Agreement. The Borrower Each borrowing by the Company under the Swing Line Commitment shall be in an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the requested Borrowing Date, such Swing Line Lender shall make available to the Company, in immediately available funds, the proceeds of such requested Swing Line Loan.
(b) Whenever a Borrowing Subsidiary desires that a Swing Line Lender make Swing Line Loans to it, such Borrowing Subsidiary shall give to such Swing Line Lender irrevocable telephonic notice (which telephonic notice must be received by such Swing Line Lender not later than 10:00 A.M., London time (or such other time as the Administrative Agent and the Swing Line Lender may consent), on the proposed Borrowing Date) confirmed promptly in writing (with a copy to the Administrative Agent), specifying (i) the amount and currency to be borrowed, (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Credit Commitment Period) and (iii) any other information requested by the Swing Line Lender in accordance with its particular borrowing procedures; provided, that the presentation by any third party of any check or -------- draft drawn on the account of a Borrowing Subsidiary or any other borrowing by way of overdraft being deemed to constitute a notice of borrowing of Swing Line Loans by such Borrowing Subsidiary in the amount of such check, draft or other borrowing, to the extent that insufficient funds are then available for the payment thereof in the account of such Borrowing Subsidiary with the relevant Swing Line Lender and so long as the amount and currency with respect to such deemed notice of borrowing are in compliance with the terms of this Agreement. Each borrowing under the Swing Line Commitment by a Borrowing Subsidiary shall be in the amount equal to the Dollar Equivalent of $500,000 or a whole multiple of $100,000 in excess thereof (or, if such borrowing is to be made in any Optional Currency, an amount in such Optional Currency approximately equal to such amount). Not later than 3:00 P.M., London time, on the requested Borrowing Date, such Swing Line Lender shall make available to the relevant Borrowing Subsidiary, in immediately available funds, the proceeds of such requested Swing Line Loan.
(c) Each Swing Line Lender, at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date its sole and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shallabsolute discretion may, on behalf of the relevant Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf), on (x) and on one Business Day's notice in the earlier case of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan Loans made to the Company in Dollars or (iiy) on three Business Days' notice, otherwise, given by the date on which Swing Line Lender through the Revolving Credit Commitments shall terminate pursuant to Section 8Administrative Agent no later than 12:00 Noon, New York City time, in the case of borrowings by the Company, and 12:00 Noon, London time, in the case of borrowings by any Borrowing Subsidiary, request each Revolving Credit Lender (including the Swing Line Lender) to make make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Revolving Credit Commitment Lender's Revolving Credit Percentage of the principal aggregate amount of such the outstanding Swing Line Loan. Unless any of Loans (the events described in paragraph (f"Refunded Swing Line Loans") of Section 8 shall have occurred with respect to which such ------------------------- notice has been given, to repay the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each requesting Swing Line Lender. Each Revolving Credit Lender shall make the proceeds amount of its such Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's office specified Funding Office in or pursuant to subsection 11.2 prior to 11:00 A.M.immediately available funds, not later than 1:00 P.M., New York City time, in funds immediately available the case of borrowings by the Company, and 1:00 P.M., London time, in Dollars on the case of borrowings by any Borrowing Subsidiary, in each case, one Business Day next succeeding (or three Business Days, as the case may be) after the date of such notice is givennotice. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line Note. The Borrower authorizes by the Swing Line Lender to repay the Refunded Swing Line Loans. The relevant Borrower irrevocably authorizes the Administrative Agent to charge the such Borrower's accounts with the Swing Line Lender Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of its outstanding such Refunded Swing Line Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full such outstanding Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Refunded Swing Line Loans.
(d) If prior to the making of time a Revolving Credit Loan would have otherwise been made pursuant to paragraph (b) of subsection 2.19 Section 2.7(c), one of the events described in paragraph (fSection 9(f) of Section 8 shall have occurred and be continuing with respect to the BorrowerCompany or the relevant Borrowing Subsidiary or if for any other reason, as determined by the Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(c), each Revolving Credit Lender willshall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in subsection 2.19Section 2.7(c) (the "Refunding Date"), purchase for cash an -------------- undivided participating interest in the outstanding Swing Line Loans in an amount equal to (i) its Revolving Credit Commitment Percentage times (ii) the aggregate principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer ----- outstanding which were to have been repaid with such Revolving Credit Loans (the "Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.Amount"). -------------------------------
(e) Whenever, at any time after any the Swing Line Lender has purchased a participating interest in a received from any Revolving Credit Lender such Lender's Swing Line LoanParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to the Administrative Agent for distribution to such Lender its participating interest in such amount Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Lender's participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender's pro rata --- ---- portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due); provided, however, that in -------- ------- the event that such payment received by the Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Administrative Agent for distribution to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender to itLender.
(f) Each Borrower hereby irrevocably and unconditionally authorizes the Swing Line Lender to convert into Dollars (at the actual exchange rate then available to it) all amounts then owing to it on account of any Swing Line Loan which is denominated in Pesetas. Such Swing Line Lender and each Revolving Credit Lender hereby irrevocably and unconditionally agrees that (i) no Revolving Credit Lender shall have any obligation to make any Loans or purchase any participating interests contemplated by Section 2.7(d) or (e) on account of such Peseta-denominated Swing Line Loan until such time as such Swing Line Lender has effected the conversion described above and provided written notice to the Administrative Agent (which shall promptly forward such notice to the Revolving Credit Lenders) of the amount of Dollars owing to it as a result of such conversion and (ii) from and after the date upon which such conversion is effected, the obligations of the Revolving Credit Lenders under Sections 2.7(d) and (e) shall be satisfied only by the payment to such Swing Line Lender of such Revolving Credit Lender's Revolving Credit Percentage of the amount of Dollars so notified to the Administrative Agent.
(g) Each Revolving Credit Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(bSection 2.7(c) and to purchase participating interests pursuant to subsection 2.19(dSection 2.7(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-offsetoff, counterclaim, recoupment, defense or other right which such Lender Revolving Credit Lender, the Company or the Borrower relevant Borrowing Subsidiary may have against the Swing Line Lender, the Borrower Company, the relevant Borrowing Subsidiary or any other Person for any reason whatsoever, ; (ii) the occurrence or continuance of a Default or an Event of Default, Default or the failure to satisfy any of the other conditions specified in Section 6; (iii) any adverse change in the condition (financial or otherwise) of the Borrower, Company or the relevant Borrowing Subsidiary; (iv) any breach of this Agreement or any other Loan Document by the BorrowerCompany, any Subsidiary other Loan Party or any other Revolving Credit Lender, ; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(h) Notwithstanding anything to the contrary contained herein, no Revolving Credit Lender shall be required to make a Revolving Credit Loan pursuant to Section 2.7(c) or acquire a participation pursuant to Section 2.7(d) in a Swing Line Loan if an Event of Default shall have occurred and be continuing at the time such Swing Line Loan was made and such Revolving Credit Lender shall have notified the relevant Swing Line Lender and the Administrative Agent in writing, at least one Business Day prior to the time such Swing Line Loan was made, that such Event of Default has occurred and that such Revolving Credit Lender will not acquire participations in Swing Line Loans made while such Event of Default is continuing.
Appears in 1 contract
Procedure for Swing Line Borrowing. Refunding of Swing Line ----------------------------------------------------------- Loans.
(a) The Whenever the Borrower may borrow under desires that the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower Lender make Swing Line Loans it shall give the Swing Line Lender and the Administrative Agent irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender prior to 12:00 Noonnot later than 1:30 P.M., New York City time, on the proposed Borrowing Date), specifying (i) on the amount to be borrowed, (ii) the account to which such amount should be transferred and (iii) the requested Borrowing Date specifying the amount of the requested Swing Line Loan (which shall be in an aggregate minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereofBusiness Day during the Revolving Credit Commitment Period). The proceeds of Each borrowing under the Swing Line Loan will Commitment shall be made available by the Swing Line Lender in a minimum amount equal to the Borrower at the office of the Swing Line Lender by 1:00 $50,000. Not later than 4:30 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing Line Lender shall make available to the Administrative Agent at the Funding Office an amount in Dollars and in immediately available funds equal to the amount of the Swing Line Loan to be made by crediting the Swing Line Lender. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the Borrower on such Borrowing Date by transferring such proceeds to the account of the Borrower at specified by the Borrower on such office with such proceeds. Borrowing Date in immediately available funds.
(b) The Borrower may Swing Line Lender, at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date its sole and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shallabsolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) and ), on one Business Day's notice to the earlier of (i) Administrative Agent given by the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8Lender no later than 12:00 Noon, New York City time, request each Revolving Credit Lender (including the Swing Line Lender) to make make, and each Revolving Credit Lender hereby severally agrees to make, a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Revolving Credit Commitment Lender's Revolving Credit Percentage of the principal aggregate amount of such the Swing Line LoanLoans (the "Refunded Swing Line Loans") outstanding on the date of such notice, to repay ------------------------- the Swing Line Lender. Unless Upon receipt of any of such notice from the events described in paragraph (f) of Section 8 Swing Line Lender, the Administrative Agent shall have occurred with respect to promptly notify the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Revolving Credit Lenders thereof. Each Revolving Credit Lender shall make the proceeds amount of its such Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's office specified Funding Office in or pursuant to subsection 11.2 prior to 11:00 immediately available funds, not later than 10:00 A.M., New York City time, in funds immediately available in Dollars on the one Business Day next succeeding after the date of such notice is givennotice. The proceeds of such Revolving Credit Loans shall be immediately applied made available by the Administrative Agent to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line Note. The Borrower authorizes Lender for application by the Swing Line Lender to charge the Borrower's accounts with repayment of the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the amount of its outstanding Swing Line Loans to the extent amounts received from the Lenders are not sufficient to repay in full such outstanding Refunded Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans.
(d) If prior to the making of time a Revolving Credit Loan would have otherwise been made pursuant to paragraph (b) of subsection 2.19 Section 2.7(b), one of the events described in paragraph (fSection 8(f) of Section 8 shall have occurred and be continuing with respect to the BorrowerBorrower or if for any other reason, as determined by the Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each Revolving Credit Lender willshall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in subsection 2.19Section 2.7(b) (the "Refunding Date"), purchase for cash an undivided participating interest in -------------- the then outstanding Swing Line Loans in by paying to the Swing Line Lender an amount (the "Swing Line Participation Amount") equal to (i) its such Revolving ------------------------------- Credit Lender's Revolving Credit Commitment Percentage times (ii) the sum of the aggregate ----- principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer outstanding which were to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to have been repaid with such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amountRevolving Credit Loans.
(ed) Whenever, at any time after any the Swing Line Lender has purchased a participating interest in a received from any Revolving Credit Lender such Lender's Swing Line LoanParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to such Lender its participating interest in such amount Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Lender's participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender's pro rata portion of such payment if such payment is not --- ---- sufficient to pay the principal of and interest on all Swing Line Loans then due); provided, however, that in the event that such payment received by the -------- ------- Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender to itLender.
(fe) Each Revolving Credit Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(bSection 2.7(b) and to purchase participating interests pursuant to subsection 2.19(dSection 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-offsetoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, ; (ii) the occurrence or continuance of a Default or an Event of Default, Default or the failure to satisfy any of the other conditions specified in Section 2.5 or 5; (iii) any adverse change in the condition (financial or otherwise) of the Borrower, ; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any Subsidiary other Loan Party or any other Revolving Credit Lender, ; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Procedure for Swing Line Borrowing. (a) The Borrower may borrow under Interest on Swing Line Loans. Whenever the Borrowers desire that the Swing Line Commitment during the Revolving Credit Commitment Period on any Business DayLender make Swing Line Loans under Section 2.18, provided that the Borrower American Ski shall give the Swing Line Lender and the Administrative Agent irrevocable telephonic notice confirmed promptly in writing by delivery of a Notice of Revolving Credit or Swing Line Borrowing (which telephonic notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date specifying the amount of the requested Swing Line Loan which shall be in an aggregate minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by not later than 1:00 P.M., New York City Boston time, on the Borrowing Date by crediting proposed borrowing date), specifying (a) the account amount to be borrowed, (b) whether such Swing Line Loan is requested to be a Money Market Loan or a Base Rate Loan and (c) the requested borrowing date (which shall be a Business Day prior to the Revolving Credit Termination Date); and not later than 3:00 P.M., Boston time, on the borrowing date specified in the notice in respect of the Borrower at such office with such proceeds. The Borrower may at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shall, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) and on the earlier of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8, request each Lender (including the Swing Line Lender) to make a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Credit Commitment Percentage of the principal amount of such Swing Line Loan. Unless any of the events described in paragraph (f) of Section 8 shall have occurred with respect to the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Lender shall make the proceeds of its Revolving Credit such Swing Line Loan available to the Administrative Agent American Ski, as agent for the account of the Swing Line Lender at the Administrative Agent's office specified Borrowers on such borrowing date in or pursuant to subsection 11.2 prior to 11:00 A.M., New York City time, in funds immediately available in Dollars on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the relevant Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line Note. The Borrower authorizes the Swing Line Lender to charge the Borrower's accounts accordance with the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the amount instructions of its outstanding Swing Line Loans to the extent amounts received from the Lenders are not sufficient to repay in full such outstanding Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans.
(d) If prior to the making of a Revolving Credit Loan pursuant to paragraph (b) of subsection 2.19 one of the events described in paragraph (f) of Section 8 shall have occurred and be continuing with respect to the Borrower, each Lender will, on the date such Revolving Credit Loan was to have been made pursuant to the notice in subsection 2.19, purchase an undivided participating interest in the outstanding Swing Line Loans in an amount equal to (i) its Revolving Credit Commitment Percentage times (ii) the aggregate principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after any Lender has purchased a participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating interest was outstanding and funded)ASC East; provided, however, that in the event that such payment received provisions of the cash management arrangements between the Borrowers and the Swing Line Lender, including any provisions relating to automatic Swing Line Loans to fund daily disbursements under a Borrower's controlled disbursement account shall supersede the foregoing requirements. The Borrowers, jointly and severally, shall pay interest on the unpaid balance of the Swing Line Loans from time to time outstanding at a per annum rate equal to the Applicable Base Rate or the Money Market Rate as agreed to by the Swing Line Lender is required to and the Borrower at the time of making the Swing Line Loan. Interest on the Swing Line Loans shall be returnedpayable quarterly in arrears on the first day of the month following the end of each fiscal quarter, such Lender will return commencing November 1, 1999 and continuing until all of the Indebtedness of the Borrowers to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to ithereunder shall have been paid in full.
(f) Each Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(b) and to purchase participating interests pursuant to subsection 2.19(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any Subsidiary or any other Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
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Procedure for Swing Line Borrowing. Refunding of Swing Line ----------------------------------------------------------- Loans.
(a) The Whenever the Borrower may borrow under desires that the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower Lender make Swing Line Loans it shall give the Swing Line Lender and the Administrative Agent irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender prior to 12:00 Noonnot later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) on the amount to be borrowed and (ii) the requested Borrowing Date specifying (which shall be a Business Day during the amount Revolving Credit Commitment Period). A copy of each such notice shall be promptly furnished by the requested Borrower to the Administrative Agent. Subject to Section 3.5, each borrowing under the Swing Line Loan which Commitment shall be in an aggregate minimum amount of equal to $5,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by 1:00 Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing Line Lender shall make available to the Administrative Agent at its office specified in Section 10.2 an amount in immediately available funds equal to the amount of the Swing Line Loan to be made by crediting the Swing Line Lender. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the Borrower at with the Administrative Agent on such office with such proceeds. Borrowing Date in immediately available funds.
(b) The Borrower may Swing Line Lender, at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City time, on any Business Day of the date its sole and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Swing Line Lender shallabsolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) and ), on one Business Day's notice given by the earlier of (i) the fifth Business Day following the Borrowing Date with respect to any Swing Line Loan or (ii) on the date on which the Revolving Credit Commitments shall terminate pursuant to Section 8Lender no later than 12:00 Noon, New York City time, request each Revolving Credit Lender (including the Swing Line Lender) to make make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall be an ABR Loan, unless the Borrower notified the Administrative Agent pursuant to subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in an amount equal to such Lend▇▇'▇ ▇evolving Revolving Credit Commitment Lender's Revolving Credit Percentage of the principal aggregate amount of such the Swing Line LoanLoans (the "Refunded Swing Line Loans") outstanding on ------------------------- the date of such notice, to repay the Swing Line Lender. Unless any of the events described in paragraph (f) of Section 8 shall have occurred with respect to the Borrower (in which event the procedures of paragraph (d) of this subsection 2.19 shall apply) each Each Revolving Credit Lender shall make the proceeds amount of its such Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's its office specified set forth in or pursuant to subsection 11.2 prior to 11:00 Section 10.2 in immediately available funds, not later than 10:00 A.M., New York City time, in funds immediately available in Dollars on the one Business Day next succeeding after the date of such notice is givennotice. The proceeds of such Revolving Credit Loans shall be immediately applied by the Swing Line Lender to repay the relevant Refunded Swing Line Loan. Effective on the day such Revolving Credit Loans are made, the relevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line Loan and shall no longer be due under the Swing Line NoteLoans. The Borrower irrevocably authorizes the Swing Line Lender to charge the Borrower's accounts with the Swing Line Lender Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of its outstanding such Refunded Swing Line Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full such outstanding Refunded Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not make any Swing Line Loans if the Swing Line Lender has received written notice that the conditions set forth in subsection 5.2 have not been satisfied in connection with the making of such Swing Line Loans.
(d) If prior to the making of time a Revolving Credit Loan would have otherwise been made pursuant to paragraph (b) of subsection 2.19 Section 2.7(b), one of the events described in paragraph (fSection 8(f) of Section 8 shall have occurred and be continuing with respect to the BorrowerBorrower or if for any other reason, as determined by the Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each Revolving Credit Lender willshall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in subsection 2.19Section 2.7(b) (the "Refunding Date"), purchase for cash an undivided participating interest in the outstanding Swing Line Loans in -------------- an amount equal to (i) its Revolving Credit Commitment Percentage times (ii) the aggregate ----- principal amount of Swing Line Loans then outstanding. Each Lender will immediately transfer outstanding which were to have been repaid with such Revolving Credit Loans (the "Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.Amount"). -------------------------------
(ed) Whenever, at any time after any the Swing Line Lender has purchased a participating interest in a received from any Revolving Credit Lender such Lender's Swing Line LoanParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to such Lender its participating interest in such amount Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lend▇▇'▇ ▇articipating Lender's participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender's pro rata portion of such payment if such payment is not --- ---- sufficient to pay the principal of and interest on all Swing Line Loans then due); provided, however, that in the event that such payment received by the -------- ------- Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender to itLender.
(fe) Each Revolving Credit Lender's obligation to make the Revolving Credit Loans referred to in subsection 2.19(bSection 2.7(b) and to purchase participating interests pursuant to subsection 2.19(dSection 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-offsetoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any Subsidiary or any other Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.;
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