Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds. (b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder. (c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan. (d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation. (e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to may, in its sole discretion, make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00025.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.8 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower shall give the Swing Line Lender and Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender and Administrative Agent prior to 1:00 P.M., 2:00 P.M. New York City time (or such later time as may be agreed by the Swing Line Lender in its reasonable discretion), on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, by crediting the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records account of such Swing Line Lender and Borrower at such office with such proceeds in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderDollars.
(cb) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 8.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 3.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.8 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the Administrative Agent Office prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent Office prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (c), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.8(c) and 2.8(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender; (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 3 contracts
Sources: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and relying upon the agreements of the Revolving Lenders set forth in this Section 2.3, the Swing Line Lender agrees to shall make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) Loans to the Company in Dollars under the Aggregate Commitment Borrower at any time or from time to time during after the Commitment Period in an aggregate principal amount at any one time outstanding Closing Date to, but not including, the Maturity Date with respect to exceed $30,000,000the Revolving Credit Facility; provided, howeverthat after giving effect to any such Swing Line Loan, (i) the aggregate amount of Swing Line Loans shall not exceed the Swing Line Commitment and (ii) the Revolving Credit Facility Usage shall not exceed the Revolving Commitments. Each request by the Borrower for a Swing Line Loan shall be deemed to be a representation by the Borrower that it is in compliance with the proviso at no time (the end of the preceding sentence and with Section 4.2 after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow Swing Line Lender Loans in accordance with this Section 2.3. Unless the CoBank Cash Management Agreement is in effect and the Borrower has elected (without modification) pursuant to its rule set instructions or similar document to have its accounts that are subject to the CoBank Cash Management Agreement settle against the Swing Line Loan, the Borrower shall not make use the proceeds of any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or to refinance any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any outstanding Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, If at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in the aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount balance of the Swing Line Loans (the “Refunded Swing Line Loans”) then outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to exceeds the Swing Line Lender for its own account at Commitment, the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans Borrower shall be immediately applied deemed to repay have requested the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Revolving Lenders to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described Loans in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest difference in a Refunded Swing Line Loan the manner and pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case terms of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line LenderSection 2.2(b).
Appears in 3 contracts
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/), Credit Agreement (Shenandoah Telecommunications Co/Va/), Credit Agreement (Shenandoah Telecommunications Co/Va/)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the Company in Dollars under the Aggregate Commitment Borrowers from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided25,000,000 (provided that the Dollar Equivalent of the aggregate principal amount at any one time outstanding of Foreign Currency Swing Line Loans shall not exceed $5,000,000), however, provided that at no time may the sum of the then outstanding Swing Line Loans, Revolving Credit Loans (including, without limitation, in the case of Revolving Credit Loans and Swing Line Loans then outstanding in any Designated Foreign Currency, the Dollar Equivalent of the aggregate principal amount thereof) and L/C Obligations exceed the Revolving Credit Commitments then in effect, provided, further, that the Swing Line Lender shall not make any Swing Line Foreign Currency Loan if, after giving effect to the making thereof, (x) the sum of such the then outstanding Revolving Credit Loans in Designated Foreign Currencies, the then outstanding Swing Line Loan Foreign Currency Loans and the use then outstanding L/C Obligations in respect of Foreign Backstop Letters of Credit would exceed $75,000,000 and (y) the aggregate principal amount of Revolving Credit Loans and Swing Line Loans made to Foreign Subsidiary Borrowers shall at no time exceed $25,000,000 (it being understood and agreed that the Administrative Agent shall calculate the Dollar Equivalent of the proceeds thereof) may then outstanding Revolving Credit Loans in any Designated Foreign Currency, the Aggregate Outstanding Multi-then outstanding Swing Line Foreign Currency Extensions Loans and, to the extent applicable, the then outstanding L/C Obligations in respect of any Foreign Backstop Letters of Credit exceed on the Maximum Availabilitydate the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in either (x) Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans or Swing Line Foreign Currency Loans or (y) any Designated Foreign Currency selected by the relevant Borrower, and shall be Swing Line Foreign Currency Loans and shall not be entitled to be converted into Eurocurrency Loans or ABR Loans. The Company Parent Borrower (on behalf of itself or any other Borrower as the case may be) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.(x) 12:00 Noon, New York City time time, in the case of any Swing Line Loan made in Dollars, and (y) 11:00 A.M., London time, in the case of any Swing Line Foreign Currency Loans) on the requested borrowing dateBorrowing Date specifying (1) the identity of the Borrower, specifying (2) the currency of such Swing Line Loan (either Dollars or the Designated Foreign Currency) and, in the case of Foreign Currency Swing Line Loans, the Interest Period to be applicable thereto which shall be a period contemplated by clause (a) of the definition of the term “Interest Period”, and (3) the amount of each the requested Swing Line Loan. The , which shall be in a minimum amount of (or, in the case of Swing Line Lender shall not make any Swing Line Loan in Foreign Currency Loans, the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more Dollar Equivalent of the conditions precedent contained principal amount thereof shall be in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, an amount equal to) $100,000 or take notice whether, the conditions precedent set forth whole multiples of $50,000 in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars or in the Designated Foreign Currency specified in such notice.
(b) Each of the Parent Borrower and any Foreign Subsidiary Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Termination Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs the and authorizes such Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Revolving Credit Lender, including the Swing Line Lender (i) to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars and (ii) with respect to all of the Swing Line Loans in any Designated Foreign Currency, to make a Eurocurrency Loan in such Designated Foreign Currency and having an Interest Period of one month (each, a “Mandatory Revolving Credit Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Credit Lender’s Revolving Credit Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Credit Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Revolving Credit Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including, without limitation, any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Credit Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Credit Loan Borrowing and (v) the amount of the Revolving Credit Commitment of such, or any other, Revolving Credit Lender at such time. The proceeds of such Revolving Credit Loans (including without limitation, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans.
(d) If the Revolving Credit Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each Revolving Credit Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan as an ABR Loan or, in the case of Swing Line Foreign Currency Loans, as a Eurocurrency Loan having an Interest Period of one month (which Revolving Credit Loan shall be deemed a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments of the aggregate principal amount of such Swing Line Loans; provided, that in the event that any Mandatory Revolving Credit Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Revolving Credit Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Credit Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Credit Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Credit Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Credit Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Credit Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Revolving Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, Loans outstanding on the date such of termination or expiration of the Revolving Credit Loan was to have been made, Commitments. In the event that the Revolving Credit Lenders purchase an undivided participating interest in interests pursuant to the Refunded Swing Line Loan in an amount equal to its Commitment Percentage first sentence of such Refunded Swing Line Loan. Each Multi-Currency this paragraph (d), each Revolving Credit Lender will shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time (or, in the case of Swing Line Foreign Currency Loans, London time), on a Business Day, distribute to such Revolving Credit Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Revolving Credit Lender’s obligation to make the Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving Credit Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Revolving Credit Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 2 contracts
Sources: Credit Agreement (VWR International, Inc.), Credit Agreement (VWR International, Inc.)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, from time to time prior to the Revolving Credit Termination Date each Swing Line Lender severally (but not jointly) agrees to make swing line loans Swing Line Loans in Dollars or euros (except with respect to Swing Line Loans under the Facility A-2 Commitments which shall be in Dollars only) to the Borrower or any Regular Subsidiary Borrower in an aggregate principal amount not to exceed $75,000,000 at any one time outstanding (each of the foregoing individually, a “Swing Line Loan”; collectively, collectively the “Swing Line Loans”) to ), which Swing Line Loans may be borrowed under any of the Company in Dollars under Facility A-1 Commitments, Facility A-2 Commitments, the Aggregate Commitment from time to time during Facility B Commitments, the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000Facility C Commitments or the Facility D Commitments; providedprovided that, however, that at no time (after giving effect to the making of such Swing Line Loan Loans, the aggregate principal amount of Swing Line Loans (including any Sterling Swing Line Loans, Australian Dollar Swing Line Loans and Canadian Dollar Swing Line Loans) made under any Revolving Facility (including the Sterling Facility, Australian Facility and Canadian Facility) at any one time outstanding shall not exceed $100,000,000 or the Non-Dollar Currency Equivalent thereof and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Facility A-1 Revolving Extensions of Credit shall not exceed the Maximum Availability. Amounts borrowed by Facility A-1 Commitments, the Company under this Section 4.1 may be repaid andAggregate Facility A-2 Revolving Extensions of Credit shall not exceed the Facility A-2 Commitments, up to but excluding the last day Aggregate Facility B Revolving Extensions of Credit shall not exceed the Commitment PeriodFacility B Commitments, reborrowedthe Aggregate Facility C Revolving Extensions of Credit shall not exceed the Facility C Commitments, the Aggregate Facility D Revolving Extensions of Credit shall not exceed the Facility D Commitments, the Aggregate Australian Revolving Extensions of Credit shall not exceed the Australian Commitments, the Aggregate Canadian Revolving Extensions of Credit shall not exceed the Canadian Commitments and the Aggregate Sterling Revolving Extensions of Credit shall not exceed the Sterling Commitments. All Swing Line Loans shall be made as Alternate Base Rate Loans on terms agreed upon by the relevant Swing Line Lender and shall not be entitled to be converted into Eurodollar Loansthe Borrower or applicable Regular Subsidiary Borrower. The Company Borrower or applicable Regular Subsidiary Borrower shall give the Swing Line Lender Administrative Agent irrevocable notice, notice (which notice shall may be made by telephone and confirmed in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), writing promptly thereafter) and which notice must be received by the Swing Line Lender Administrative Agent at or prior to 1:00 P.M., New York City time time, on the requested borrowing dateBorrowing Date), specifying the amount of each requested Swing Line Loan, which shall be greater than or equal to a minimum amount to be agreed upon by the Borrower or applicable Regular Subsidiary Borrower and the relevant Swing Line Lender, and the Revolving Facility under which it is to be borrowed. The In giving irrevocable notice, the Borrower or the applicable Regular Subsidiary Borrower shall designate, at its option, one or two Swing Line Lenders to make one or more Swing Line Loans in the relevant currency. Upon such notice, the Administrative Agent shall promptly notify each applicable Swing Line Lender shall not make any thereof. Each Swing Line Loan Lender which has been designated by the Borrower or the applicable Regular Subsidiary Borrower in its irrevocable notice shall make the amount of its ratable share of each borrowing in the period commencing on currency requested available to the first Business Day after it receives written notice from Borrower or applicable Regular Subsidiary Borrower in the manner directed by the Administrative Agent or any Multi-Currency Lender that one or more of on the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsrequested Borrowing Date.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording Lenders or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, them at any time and in their or its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower or applicable Regular Subsidiary Borrower (which hereby irrevocably directs the Swing Line Lender Lenders to act on its behalf) ), request each Multi-Currency Revolving Credit Lender under the applicable Revolving Facility, including each Swing Line Lender, with respect to all other Swing Line Loans, to make a Revolving Credit Loan (as an Alternate Base Rate Loanunder such Revolving Facility, in the currency of the Swing Line Loan(s) made by such Swing Line Lender(s) in an amount equal to such Multi-Currency Lender’s Commitment Revolving Percentage under such Revolving Facility of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.3 shall apply) ), each Multi-Currency Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender for its own account Lenders, at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. 12:00 Noon (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(dc) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (cb) of Section 4.1this subsection 2.3, one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Revolving Credit Lender under the applicable Revolving Facility hereby agrees to and will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the each Refunded Swing Line Loan in an amount equal to its Commitment Revolving Percentage under such Revolving Facility of such Refunded Swing Line Loan. Each Multi-Currency Such Revolving Credit Lender will immediately transfer to the Administrative Agent for the account of the Swing Line LenderLenders, in immediately available fundsfunds denominated in Dollars, the Dollar Equivalent (if applicable) of the amount of its participationparticipations and, upon its receipt of its ratable share thereof, each Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount. On such date, any Swing Line Loans not denominated in Dollars shall, without any further action or notice being required, be converted to and become denominated in Dollars in an amount equal to the Dollar Equivalent of the amount thereof on such date.
(ed) Whenever, at any time after the any Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the and such Swing Line Lender receives any payment on account thereof, the such Swing Line Lender will distribute to such Multi-Currency Revolving Credit Lender through the Administrative Agent its participating interest in such Dollar Equivalent amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s participating interest was outstanding and funded) in like funds as receiveddenominated in Dollars; provided, however, that in the event that such payment received by the such Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the such Swing Line Lender through the Administrative Agent any portion thereof previously distributed by the such Swing Line Lender to it in like funds as such payment is required to be returned by the such Swing Line Lender.
Appears in 2 contracts
Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any U.S. Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000100.0 million; provided, however, provided that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may Lender shall not make any Swing Line Loans if, after doing so, the Aggregate Outstanding Multi-Currency U.S. Facility Lender Exposure or Aggregate U.S. Borrower Extensions of Credit would exceed the Maximum Availabilityapplicable limitations set forth in subsection 2.1. Amounts borrowed by the Company any U.S. Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company U.S. Borrower Representative (on behalf of any U.S. Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 3:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the U.S. Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000.00 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000.00 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with U.S. Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by wire transfer to the account of such U.S. Borrower specified in Section 14.2such notice.
(b) Each of the U.S. Borrowers agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit I-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Lender U.S. Facility Lender, including the Swing Line Lender, to make a U.S. Facility Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such U.S. Facility Lender’s U.S. Facility Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency U.S. Facility Lender’s U.S. Facility Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 U.S. Facility Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency U.S. Facility Lender shall hereby agrees to make the proceeds of its U.S. Facility Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the U.S. Facility Commitment of such, or any other, U.S. Facility Lender at such time. The proceeds of such U.S. Facility Revolving Credit Loans (including, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that U.S. Facility Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each U.S. Facility Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe U.S. Facility Commitments, prior to the making of make a U.S. Facility Revolving Credit Loan pursuant to paragraph as an ABR Loan (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which U.S. Facility Revolving Credit Loan was to have been made, shall be deemed a “U.S. Facility Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such U.S. Facility Lender’s U.S. Facility Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the U.S. Facility Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. Facility Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. Facility Lenders to share in such Swing Line Loans ratably based upon their respective U.S. Facility Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. Facility Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. Facility Revolving Credit Loans made as ABR Loans. Each Multi-Currency U.S. Facility Lender will make the proceeds of any U.S. Facility Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. Facility Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such U.S. Facility Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. Facility Commitments. In the event that the U.S. Facility Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. Facility Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such U.S. Facility Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency U.S. Facility Lender such Multi-Currency U.S. Facility Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. Facility Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency U.S. Facility Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each U.S. Facility Lender’s obligation to make the U.S. Facility Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by U.S. Facility Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. Facility Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. Facility Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 2 contracts
Sources: Abl Credit Agreement (Hd Supply, Inc.), Abl Credit Agreement (Hd Supply, Inc.)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any U.S. Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00075,000,000; provided, however, provided that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may Lender shall not make any Swing Line Loans if, after doing so, the Aggregate Outstanding Multi-Currency Extensions of Credit Tranche A U.S. Facility Lender Exposure would exceed the Maximum AvailabilityAggregate Tranche A U.S. Facility Commitment or the Aggregate Tranche A U.S. Borrower Credit Extensions would exceed the applicable limitation set forth in subsection 2.1(a)(i)(B). Amounts borrowed by the Company any U.S. Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower Representative (on behalf of any U.S. Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 3:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the U.S. Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000.00 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000.00 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with U.S. Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by wire transfer to the account of such U.S. Borrower specified in Section 14.2such notice.
(b) Each of the U.S. Borrowers agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit I-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than five Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Lender Tranche A U.S. Facility Lender, including the Swing Line Lender, to make a Tranche A U.S. Facility Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Tranche A U.S. Facility Lender’s Tranche A U.S. Facility Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection 2.4(c) shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Tranche A U.S. Facility Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Tranche A U.S. Facility Lender shall hereby agrees to make the proceeds of its Tranche A U.S. Facility Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Tranche A U.S. Facility Commitment of such, or any other, Tranche A U.S. Facility Lender at such time. The proceeds of such Tranche A U.S. Facility Revolving Credit Loans (including, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Tranche A U.S. Facility Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Tranche A U.S. Facility Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Tranche A U.S. Facility Commitments, prior to the making of make a Tranche A U.S. Facility Revolving Credit Loan pursuant to paragraph as an ABR Loan (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which Tranche A U.S. Facility Revolving Credit Loan was to have been made, shall be deemed a “Tranche A U.S. Facility Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Tranche A U.S. Facility Lender’s Tranche A U.S. Facility Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Tranche A U.S. Facility Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Tranche A U.S. Facility Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Tranche A U.S. Facility Lenders to share in such Swing Line Loans ratably based upon their respective Tranche A U.S. Facility Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Tranche A U.S. Facility Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Tranche A U.S. Facility Revolving Credit Loans made as ABR Loans. In the event that the Tranche A U.S. Facility Commitments shall expire or terminate in part (and not in full) at any time while Swing Line Loans are outstanding, the applicable Borrower shall repay Swing Line Loans in the amount by which the outstanding Swing Line Loans exceed the continuing Tranche A U.S. Facility Commitments; and in the event that such Borrower fails to do so, the obligations of each Tranche A U.S. Facility Lender pursuant to the prior sentence shall apply with respect to such Lender’s Tranche A U.S. Facility Commitment Percentage (calculated immediately prior to such expiration or termination) of the amount by which the outstanding Swing Line Loans in excess of the continuing Tranche A U.S. Facility Commitments not so repaid. Each Multi-Currency Tranche A U.S. Facility Lender will make the proceeds of any Tranche A U.S. Facility Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Tranche A U.S. Facility Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such Tranche A U.S. Facility Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Tranche A U.S. Facility Commitments. In the event that the Tranche A U.S. Facility Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Tranche A U.S. Facility Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Tranche A U.S. Facility Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Tranche A U.S. Facility Lender such Multi-Currency Tranche A U.S. Facility Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Tranche A U.S. Facility Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Tranche A U.S. Facility Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Tranche A U.S. Facility Lender’s obligation to make the Tranche A U.S. Facility Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Tranche A U.S. Facility Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Tranche A U.S. Facility Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Tranche A U.S. Facility Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 2 contracts
Sources: Abl Credit Agreement (Veritiv Corp), Abl Credit Agreement (Veritiv Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the each Swing Line Lender agrees that, during the Revolving Credit Commitment Period, it will make available to make the Borrowers in the form of swing line loans denominated in Dollars or Canadian Dollars (individually, a “Swing Line Loan”; collectively, with respect to the Canadian Borrower) or Dollars (with respect to the US Borrower) (“Swing Line Loans”) a portion of the credit otherwise available to the Company in Dollars Borrowers under the Aggregate Commitment from time to time during Revolving Credit Commitments; provided, that (i) the Commitment Period in an Dollar Equivalent of the aggregate principal amount of Swing Line Loans outstanding at any one time shall not exceed the Swing Line Commitment then in effect (notwithstanding that the Swing Line Loans outstanding at any time, when aggregated with the Swing Line Lenders’ other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in effect or such Swing Line Lender’s Revolving Credit Commitment then in effect) and (ii) the Borrowers shall not to exceed $30,000,000; providedrequest, howeverand no Swing Line Lender shall make, that at no time (any Swing Line Loan if, after giving effect to the making of such Swing Line Loan and Loan, the use aggregate amount of the proceeds thereof) may Available Revolving Credit Commitments with respect to the Aggregate Outstanding Multi-Currency Extensions of Borrower requesting such Swing Line Loan would be less than zero. During the Revolving Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowedthe Borrowers may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. All Swing Line Loans denominated in Dollars shall be made as Alternate Base Rate Loans only, and Swing Line Loans denominated in Canadian Dollars shall not be entitled to be converted into Eurodollar LoansCanadian Prime Rate Loans only. The Company shall give Notwithstanding the foregoing, if a Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (has not consented to a “Swing Line Loan Request”), and which notice must be received Revolving Credit Lender becoming a party hereto by the Swing Line Lender prior to 1:00 P.M., New York City time Addendum on the requested borrowing dateClosing Date, specifying the amount of each requested Swing Line Loan. The such Swing Line Lender shall not be required to make any a Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on hereunder unless such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required has entered into arrangements satisfactory to determine that, or take notice whether, it and the conditions precedent set forth applicable Borrower with respect to such Revolving Credit Lender’s participation in Section 9.2 have been satisfied in connection with the making of any such Swing Line Loan. The proceeds , including by cash collateralizing an amount equal to such Revolving Credit Lender’s share of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsLoans outstanding.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 Borrowers shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of repay all outstanding Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Revolving Credit Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 2 contracts
Sources: Credit Agreement (Waste Services, Inc.), Credit Agreement (Waste Services, Inc.)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time.
(b) The Swing Line Bank may on the terms and subject to the conditions hereinafter set forth (including Section 4.3) make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Lenders; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments.
(c) Unless otherwise refinanced pursuant to Section 4.5, all Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement and all other Swing Line Loans shall be due and payable on each Floor Plan Adjustment Date. Each Swing Line Loan that is a Eurodollar Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Lender’s obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no any time (after not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time. After giving effect to the making all Borrowings of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate and Floor Plan Loans requested on any date, the sum of the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not be entitled to be converted into Eurodollar Loans. The Company shall give exceed the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Total Floor Plan Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsCommitment.
(b) The Company hereby agrees that each All Swing Line Loan made Loans and all Swing Line Overdraft Loans shall be evidenced by the Swing Line Lender Note, under which advances, repayments and readvances may be made, subject to the Company pursuant to terms and conditions of this Section 4.1 Agreement. In no event whatsoever shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each outstanding Swing Line Loan made by such Swing Line Lender pursuant be deemed to Section 4.1(a) and (ii) the date and amount of each payment reduce, modify or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line affect any Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure ’s obligation to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to Immediately upon the making of a Revolving Credit Swing Line Loan pursuant to paragraph (c) of Section 4.1by the Swing Line Bank, one of the events described in paragraph (j) of Section 12.1 Swing Line Bank shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was be deemed to have been madesold and transferred to each Lender and each Lender shall be deemed to have purchased and received from the Swing Line Bank, purchase without any further action by any party, an undivided participating interest in the Refunded each Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as receivedPro Rata Share; provided, however, that (a) no Lender shall be required to fund its participation in the event that such payment received by the any Swing Line Loan except as set forth in Section 4.5, and (b) no Lender is required shall be entitled to share in any payments of principal or interest in respect of its participation except, with respect to any participation funded by such ▇▇▇▇▇▇, as set forth herein. Such participation shall be returned, such Multi-Currency Lender will return subject to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.terms and conditions of this Agreement
Appears in 2 contracts
Sources: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”"SWING LINE LOAN"; collectively, the “Swing Line Loans”"SWING LINE LOANS") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided5,000,000, however, PROVIDED that at no time (after giving effect to may the making sum of such the then outstanding Revolving Credit Loans, Swing Line Loan Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.19 may be repaid and, up to through but excluding the last day Termination Date, reborrowed. Swing Line Loans may not be prepaid without the consent of the Commitment Period, reborrowedSwing Line Lender. All Swing Line Loans shall be made as Alternate Base Negotiated Rate Loans and shall not be entitled to be converted into Eurodollar Loans or ABR Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Dollars. Each Negotiated Rate Loan shall mature and be payable at the end of the Interest Period applicable thereto.
(b) The Swing Line Loans shall, if requested by the Swing Line Lender, be evidenced by a promissory note of the Borrower substantially in Dollars and in immediately available fundsthe form of Exhibit C, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate "SWING LINE NOTE"), payable to the order of the Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a)Loans, which amounts shall be due and payable with interest thereon as prescribed in subsection 2.19
(whether at maturity or by accelerationa) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lenderthereof, in the on its internal books and records and/or on the schedule annexed to and constituting a part of such the Swing Line Lender Note and in any such manner as is reasonable and customary for it and a certificate of an officer of recordation on such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, schedule shall constitute prima facie PRIMA FACIE evidence of the accuracy of the information so recorded; provided, however, PROVIDED that the failure by the Swing Line Lender to make any such recording recordation or any error in any such recording recordation shall not in any way affect the Payment Obligations obligations of the Company hereunderBorrower under this Agreement or the Swing Line Note. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Termination Date and (c) provide for the payment of interest in accordance with subsection 2.10.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Revolving Credit Commitment Percentage of the principal amount of the Swing Line Loans (the “Refunded Swing Line Loans”"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 Revolving Credit Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.19 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its the Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Revolving Credit Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan pursuant to paragraph or (cii) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender's Revolving Credit Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments) of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Lender will make the proceeds of any Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph, each Lender shall 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 any such Lender that so requests a confirmation of such Lender's undivided participating interest in the Swing Line Loans dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); providedPROVIDED, howeverHOWEVER, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Sources: Credit Agreement (Recoton Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) (i) to the Company in Dollars under the Aggregate Commitment Parent Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided10,000,000 and (ii) to Pickfords (to the extent its status as a Foreign Subsidiary Borrower is effective) from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding the Dollar Equivalent of which does not exceed $5,000,000, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Credit Loans (including, without limitation, in the case of Revolving Credit Loans and Swing Line Loans then outstanding in any Designated Foreign Currency, the use Dollar Equivalent of the proceeds aggregate principal amount thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit ), Permitted Receivables Transaction Prepayment Amount and L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans made to the Parent Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans or Swing Line Foreign Currency Loans. All Swing Line Loans made to Pickfords shall be made in any Designated Foreign Currency selected by Pickfords, shall be Swing Line Foreign Currency Loans and shall not be entitled to be converted into Eurocurrency Loans or ABR Loans. The Company Parent Borrower (on behalf of itself or Pickfords, as the case may be) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.(x) 12:00 Noon, New York City time time, in the case of any Swing Line Loan to the Parent Borrower, and (y) 11:00 A.M., London time, in the case of any Swing Line Loan to Pickfords) on the requested borrowing dateBorrowing Date specifying (1) the identity of the Borrower, specifying (2) if the Borrower is Pickfords, the Designated Foreign Currency of such Swing Line Loan and the Interest Period to be applicable thereto, which shall be a period contemplated by clause (a) of the definition of the term “Interest Period”, and (3) the amount of each the requested Swing Line Loan. The , which shall be in a minimum amount of (or, in the case of Swing Line Lender shall not make any Swing Line Loan in Loans to Pickfords, the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more Dollar Equivalent of the conditions precedent contained principal amount thereof shall be in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, an amount equal to) $500,000 or take notice whether, the conditions precedent set forth whole multiples of $100,000 in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars (in the case of the Parent Borrower) or in the Designated Foreign Currency specified in such notice (in the case of Pickfords).
(b) Each of the Parent Borrower and Pickfords agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-3, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Termination Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which such Swing Line Loan shall be been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Revolving Credit Lender, including the Swing Line Lender, (i) with respect to all of the Swing Line Loans to the Parent Borrower, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Revolving Credit Lender’s Revolving Credit Commitment Percentage of the principal amount of all such Swing Line Loans and (ii) with respect to all of the Swing Line Loans to Pickfords in any Designated Foreign Currency, to make a Eurocurrency Loan in such Designated Foreign Currency and having an Interest Period of one month in an amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the principal amount of all such Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Parent Borrower or Pickfords to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Credit Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Revolving Credit Lender shall will make the proceeds of its Revolving Credit Loan or Eurocurrency Loan, as applicable, available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans or Eurocurrency Loans, as applicable, shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Revolving Credit Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Revolving Credit Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan pursuant to paragraph as an ABR Loan or, in the case of Swing Line Foreign Currency Loans, as a Eurocurrency Loan having an Interest Period of one month (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which Revolving Credit Loan was to have been made, shall in each case be deemed a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Credit Lender’s Revolving Credit Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Revolving Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Revolving Credit Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Revolving Credit Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or Pickfords in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time (or, in the case of Swing Line Foreign Currency Loans, London time), on a Business Day, distribute to such Revolving Credit Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Revolving Credit Lender’s obligation to make the Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving Credit Lender or any of the Borrowers may have against the Swing Line Lender, the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, Holding, any other Loan Party or any other Revolving Credit Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Sirva Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the each Swing Line Lender severally agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any US Revolving Credit Borrower on any Business Day from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding for all Swing Line Lenders not to exceed $30,000,000200,000,000; provided, however, provided that at in no time event may the amount of any Swing Line Borrowing cause the aggregate amount of US Revolving Credit Loans and Swing Line Loans (after giving effect to the making use of proceeds of such Swing Line Loan Loans and the use of the proceeds thereofany other concurrent Borrowing) may the Aggregate Outstanding Multi-Currency Extensions of Credit to exceed the Maximum Availabilityaggregate US Revolving Credit Commitments then in effect of all US Revolving Credit Lenders. Amounts borrowed by the Company US Revolving Credit Borrowers under this Section 4.1 subsection 2.6 may be repaid and, up to but excluding the last day of the Commitment PeriodTermination Date, reborrowed. .
(b) All Swing Line Loans shall be made in Dollars and shall bear interest as Alternate Base Rate Loans and set forth in Schedule 2.13(a) and, notwithstanding subsection 2.11(a), shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company applicable US Revolving Credit Borrower shall give the Swing Line Lender Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Agent prior to 1:00 P.M., New York City time time), on the requested borrowing date, date (which shall be a Business Day) specifying the amount of each requested Swing Line Loan, which shall be in a minimum amount of $5,000,000 or a multiple of $1,000,000 in excess thereof. The Upon receipt of any such notice from the applicable US Revolving Credit Borrower, the Agent shall promptly notify each Swing Line Lender shall not thereof. Each Swing Line Lender will make any the amount of its equal share of each Swing Line Loan available to the Agent for the account of the applicable US Revolving Credit Borrower at the office of the Agent specified in the period commencing subsection 10.2 prior to 3:00 P.M., New York City time, on the first Business Day after it receives written notice from borrowing date requested by the Administrative Agent or any Multi-Currency Lender that one or more of applicable US Revolving Credit Borrower in funds immediately available to the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line LoanAgent. The proceeds of each Swing Line Loan will then be made immediately available to the applicable US Revolving Credit Borrower by the Swing Line Lender to the Company by Agent crediting the account of the Company designated applicable US Revolving Credit Borrower on the books of such office with the aggregate of the amounts made available to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made Agent by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars Lenders and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) like funds as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made received by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderAgent.
(c) The Swing Line LenderAgent, at any time in its sole and absolute discretion, maymay (or, and (i) at any time as there shall be $25,000,000 in aggregate principal amount upon the request of the majority of the Swing Line Loans outstanding or (iiLenders, shall) on the last Business Day of any calendar week shall, on behalf of the Company applicable US Revolving Credit Borrower (which hereby irrevocably directs the Swing Line Lender Agent to act on its behalf) request each Multi-Currency US Revolving Credit Lender (including each Swing Line Lender) to make a US Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s US Revolving Credit Commitment Percentage of the principal amount of the Swing Line Loans of all Swing Line Lenders (the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that (i) at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days, the Agent shall, on behalf of the applicable US Revolving Credit Borrower (which hereby irrevocably directs the Agent to act on its behalf), promptly request each US Revolving Credit Lender (including each Swing Line Lender) to make a US Revolving Credit Loan in an amount equal to such Lender’s US Revolving Credit Commitment Percentage of the principal amount of such outstanding Swing Line Loan and (ii) the Swing Line Loans shall be prepaid by the applicable US Revolving Credit Borrower in accordance with the provisions of subsection 2.10(b)(i). Unless any of the events described in paragraph (jf) of Section 12.1 7 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.6 shall apply) and regardless of whether the conditions precedent set forth in this Agreement to the making of a US Revolving Credit Loan are then satisfied, each Multi-Currency US Revolving Credit Lender shall make the proceeds of its US Revolving Credit Loan available to the Agent for the ratable benefit of the Swing Line Lender for its own account Lenders at the office of the Agent specified for the Swing Line Lender in Section 14.2 subsection 10.2 prior to 1:00 P.M. (11:00 A.M., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such US Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a US Revolving Credit Loan pursuant to paragraph (c) of Section 4.1this subsection 2.6, one of the events described in paragraph (jf) of Section 12.1 7 shall have occurred, each Multi-Currency US Revolving Credit Lender will, on the date such US Revolving Credit Loan was to have been made, purchase from the Swing Line Lenders an undivided participating interest in the Refunded Swing Line Loan Loans in an amount equal to its US Revolving Credit Commitment Percentage of such Refunded Swing Line LoanLoans. Each Multi-Currency US Revolving Credit Lender will immediately transfer to the Swing Line LenderAgent, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Agent will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) WheneverEach US Revolving Credit Lender’s obligation to make US Revolving Credit Loans and to purchase participating interests in accordance with paragraphs (c) and (d) above shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against any Swing Line Lender, any US Revolving Credit Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Company or any other Person; (iv) any breach of this Agreement by the applicable US Revolving Credit Borrower or any other Person; (v) any inability of any US Revolving Credit Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any US Revolving Credit Lender does not make available to the Agent the amount required pursuant to paragraph (c) or (d) above, as the case may be, the Agent shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date of non-payment until such amount is paid in full at the Federal Funds Rate for the first two Business Days and at the Base Rate thereafter. Notwithstanding the foregoing provisions of this subsection 2.6(e), no US Revolving Credit Lender shall be required to make a US Revolving Credit Loan to any time after US Revolving Credit Borrower for the purpose of refunding Swing Line Loans pursuant to paragraph (c) above or to purchase a participating interest in Swing Line Loans pursuant to paragraph (d) above if a Default or Event of Default has occurred and is continuing and prior to the making by the Swing Line Lenders of such Swing Line Loans, each Swing Line Lender has received written notice from any Multi-Currency such Lender specifying that such Multi-Currency Lender’s Default or Event of Default has occurred and is continuing, describing the nature thereof and stating that, as a result thereof, such Lender shall cease to make such US Revolving Credit Loans and purchase such participating interest in a Refunded Swing Line Loan pursuant interests, as the case may be; provided that the obligation of such Lender to clause make such US Revolving Credit Loans and to purchase such participating interests shall be reinstated upon the earlier to occur of (di) above, the date upon which such Lender notifies the Swing Line Lender receives any payment on account thereof, Lenders that its prior notice has been withdrawn and (ii) the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest date upon which the Default or Event of Default specified in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender notice no longer is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lendercontinuing.
Appears in 1 contract
Swing Line Commitments. (ai) Subject to the terms and ---------------------- conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment --------------- ---------------- Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; providedC$5,000,000, however, provided -------- that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Credit Loans, L/C Obligations and the use aggregate undiscounted face amount of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit all then outstanding Acceptances exceed the Maximum Availabilitylesser of (x) the Commitments and (y) the Borrowing Base then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Prime Rate Loans and shall not be entitled to be converted into Eurodollar LoansAcceptances. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 12:00 P.M., New York City time Toronto time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Canadian Dollars.
(ii) Provided that the conditions precedent contained in subsection 7.2 to its obligation to make a Swing Line Loan have been satisfied and that there is sufficient availability under the Swing Line Commitment, in Dollars and in immediately available fundson each Interest Payment Date, the aggregate Swing Line Lender shall, on behalf of the Borrower (which hereby irrevocably authorizes and directs the Swing Line Lender to act on its behalf), make a Swing Line Loan to the Borrower in an amount equal to the amount of interest due and payable on such Interest Payment Date pursuant to subsection 5.1. The proceeds of such Swing Line Loan shall be made available by the Swing Line Lender to the Administrative Agent and applied by the Administrative Agent to the payment of such interest on such Interest Payment Date; the Swing Line Lender shall notify the Borrower as soon as reasonably practicable of the amount of each such Swing Line Loan.
(b) The Swing Line Loans shall be evidenced by a promissory note of the Borrower substantially in the form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the --------------- Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a)Loans, which amounts shall be due and payable (whether at maturity or by acceleration) with interest thereon as set forth prescribed in this Agreement and, in any event, on the Multi-Currency Termination Datesubsection 5.1. The Company hereby agrees that the Swing Line Lender is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lenderthereof, in the on its internal books and records and/or on the schedule annexed to and constituting a part of such the Swing Line Lender Note and in any such manner as is reasonable and customary for it and a certificate of an officer of recordation on such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, schedule shall constitute prima ----- facie evidence of the accuracy of the information so recorded; provided, however, provided that the ----- -------- failure by the Swing Line Lender to make any such recording recordation or any error in any such recording recordation shall not in any way affect the Payment Obligations obligations of the Company hereunderBorrower under this Agreement or the Swing Line Note. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Termination Date and (c) provide for the payment of interest in accordance with subsection 5.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of when Swing Line Loans are outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Commitment Percentage of the principal amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such ------------------------- notice is given; provided that the provisions of this subsection shall not -------- affect the Borrower's obligations to prepay Swing Line Loans in accordance with the provisions of subsection 5.2(d). Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.5 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its the Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (New York City 10:00 A.M., Toronto time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Commitments, make a Revolving Credit Loan pursuant to paragraph or (cii) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender's Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Lender will make the proceeds of any Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 10:00 A.M., Toronto time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to any such Lender that so requests a confirmation of such Lender's undivided participating interest in the Swing Line Loans dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that -------- ------- such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Sources: Credit Agreement (CDW Holding Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof (including, without limitation, Section 2.23(d)), and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; , and collectively, the “Swing Line Loans”) available to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00025,000,000; providedprovided that, howeverthe Swing Line Lender shall have no obligation to and shall not issue any Swing Line Loan if, that at no time (after giving effect to such issuance, the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Revolving Extensions of Credit of all Lenders would exceed the Maximum AvailabilityRevolving Credit Commitments of all Lenders then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. Each Swing Line Borrowing shall be in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.2:30 p.m., New York City time on the requested borrowing date, Borrowing Date) specifying the Borrowing Date and the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives Each such notice given by means other than written notice from shall be promptly confirmed in writing by the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line LoanBorrower. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company Borrower by crediting the account of the Company designated to the Swing Line Lender Borrower with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request prior to 12:00 p.m., that each Multi-Currency Lender to Lender, including the Swing Line Lender, make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Applicable Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (jSection 8.1(f) of Section 12.1 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 2.5 shall apply) ), each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) 2:30 p.m. in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Each Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this Section 2.5(b) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be an ABR Loan.
(dc) If, If prior to the making of a the Revolving Credit Loan Loans pursuant to paragraph (cSection 2.5(b) of Section 4.1, one of the events described in paragraph (jSection 8.1(f) of Section 12.1 shall have occurred, each Multi-Currency Lender will, will on the date such Revolving Credit Loan was Loans were to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Applicable Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will grant to such Lender a Swing Line Loan participation as of the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed to it.
(e) Each Lender’s obligation to purchase participating interests pursuant to this Section 2.5 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 Swing Line Lender to it in like funds as such payment is required to be returned by Borrower may have against the Swing Line Lender, the Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement by the Borrower 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to each of the Company in Dollars under the Aggregate Commitment Borrowers from time to time during the Commitment Period in an aggregate principal amount as to all of the Borrowers at any one time outstanding not to exceed $30,000,000; provided20,000,000, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan and Loans, Revolving Credit Loans (including, without limitation, in the use case of Revolving Credit Loans then outstanding in any Designated Foreign Currency, the Dollar Equivalent of the proceeds aggregate principal amount thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit and L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by any of the Company Borrowers under this Section 4.1 subsection 2.5 may be repaid and, up to until but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Parent Borrower (on behalf of itself or such other Borrower, as the case may be) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 12:30 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying the identity of the Borrower and the amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more a minimum amount of the conditions precedent contained $100,000 and whole multiples of $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, by crediting the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records account of such Swing Line Lender and Borrower at such office with such proceeds in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderDollars.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Credit Agreement (Imagex Com Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and relying upon the agreements of the Revolving Lenders set forth in this Section 2.3, the Swing Line Lender agrees to shall make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) Loans to the Company in Dollars under the Aggregate Commitment Borrower at any time or from time to time during after the Commitment Period in an aggregate principal amount at any one time outstanding Initial Credit Extension to, but not including, the Maturity Date with respect to exceed $30,000,000the Revolving Credit Facility; provided, howeverthat after giving effect to any such Swing Line Loan, (i) the aggregate amount of Swing Line Loans shall not exceed the Swing Line Commitment and (ii) the Revolving Credit Facility Usage shall not exceed the Revolving Commitments. Each request by the Borrower for a Swing Line Loan shall be deemed to be a representation by the Borrower that it is in compliance with the proviso at no time (the end of the preceding sentence and with Section 4.3 after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrower may borrow, repay and reborrow Swing Line Lender Loans in accordance with this Section 2.3. Unless the CoBank Cash Management Agreement is in effect and the Borrower has elected (without modification) pursuant to its rule set instructions or similar document to have its accounts that are subject to the CoBank Cash Management Agreement settle against the Swing Line Loan, the Borrower shall not make use the proceeds of any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or to refinance any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any outstanding Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, If at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in the aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount balance of the Swing Line Loans (the “Refunded Swing Line Loans”) then outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to exceeds the Swing Line Lender for its own account at Commitment, the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans Borrower shall be immediately applied deemed to repay have requested the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Revolving Lenders to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described Loans in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest difference in a Refunded Swing Line Loan the manner and pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case terms of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line LenderSection 2.2(b).
Appears in 1 contract
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Swing Line Commitments. (a) Subject to the terms terms, conditions, representations and conditions hereofwarranties contained in the Loan Documents, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during until the Commitment Period in an aggregate principal amount at Swing Line Termination Date; provided that, the Swing Line Lender may not make any one time outstanding not to exceed $30,000,000; providedSwing Line Loan if, however, that at no time (after giving effect to the making of such Swing Line Loan and Loan, either (i) the use amount of all Swing Line Loans outstanding would exceed the proceeds thereoflesser of (x) may $10,000,000 or (y) the Aggregate Available Commitments or (ii) the Aggregate Outstanding Multi-Currency Extensions of Credit of all Lenders would exceed the Maximum AvailabilityTotal Commitment. Amounts borrowed by the Company Borrower under this Section 4.1 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodSwing Line Termination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, a Notice of Borrowing (which notice shall be in substantially the form Notice of Exhibit H-3 (a “Swing Line Loan Request”), and which notice Borrowing must be received by the Swing Line Lender prior to 1:00 P.M., New York City time Dallas, Texas time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed in Section 14.2by crediting the account of the Borrower, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made so directed by the Company to Borrower in a Notice of Borrowing, with such proceeds in Dollars.
(b) The Borrower agrees that, upon the request of the Swing Line Lender, in order to evidence the books Swing Line Loans, the Borrower will execute and records deliver to the Swing Line Lender a promissory note substantially in the form of such Exhibit F-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line Lender and in such manner a principal amount equal to $10,000,000 with interest thereon as is reasonable and customary for it and a certificate prescribed in Section 4.1. The Swing Line Note shall (i) be dated the Effective Date or the date of an officer any reissuance of such Swing Line LenderNote, setting forth (ii) be stated to mature on the Swing Line Termination Date and (iii) provide for the payment of interest in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderaccordance with Section 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Committed Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Lender’s Commitment 's Specified Percentage of the principal amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Each Lender shall will make the proceeds of its Revolving Credit Committed Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (New York City 12:00 Noon, Dallas, Texas time) , in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Committed Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to for any reason, Committed Loans may not be (as determined by the making of a Revolving Credit Loan Administrative Agent in its sole discretion), or are not, made pursuant to paragraph (cSection 2.4(c) of Section 4.1to repay Swing Line Loans as required by said Section, one of the events described in paragraph (j) of Section 12.1 shall have occurredthen, each Multi-Currency Lender will, effective on the date such Revolving Credit Loan was to Committed Loans would otherwise have been made, each Lender severally, unconditionally and irrevocably agrees that it shall purchase an undivided participating interest in the Refunded such Swing Line Loan Loans ("Unrefunded Swing Line Loans"), in an amount equal to its Commitment Percentage the amount of Committed Loans which otherwise would have been made by such Lender pursuant to Section 2.4(c) (which amount, if the Commitments shall have terminated, shall be determined on the basis of such Refunded Swing Line LoanLender's Specified Percentage (determined on the date of, and immediately prior to, termination of the Commitments). Each Multi-Currency In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender will shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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 the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Notwithstanding anything to the contrary in like funds as this Agreement, each Lender's obligation to make the Committed Loans referred to in Section 2.4(c) and to purchase and fund participating interests pursuant to Section 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such payment is required to be returned by 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 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 any Loan Party; (iv) any breach of this Agreement or any other Loan Document by any Loan Party or any 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 (Media General Inc)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “"Swing Line Loan”; collectively, the “Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT 40 42 at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time; and
(b) The Swing Line Bank may on the terms and subject to the conditions hereinafter set forth (including Section 4.3) make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Banks; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments. All Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement. Each Swing Line Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Bank's obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender Chase agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower and any Subsidiary Borrower from time to time during prior to the Commitment Period Termination Date in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding not to exceed $30,000,000; providedoutstanding, howeverprovided that, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may Loans, the Aggregate Outstanding Multi-Currency Extensions of Credit will not exceed the Maximum AvailabilityRevolving Credit Commitments. Amounts borrowed by the Company Borrower or any Subsidiary Borrower under this Section 4.1 subsection 2.3 may be repaid and, up to but excluding during the last day of the Revolving Credit Commitment Period, reborrowed. All Swing Line Loans shall be made in Dollars as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar ABR Loans. The Company Borrower shall give the Swing Line Lender Chase irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Chase prior to 1:00 P.M., New York City time time) on the requested borrowing date, date specifying the amount of each requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent an aggregate minimum amount of $250,000 or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loana whole multiple thereof. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender Chase to the Company Borrower or the relevant Subsidiary Borrower by crediting the account of the Company Borrower or the relevant Subsidiary Borrower, as applicable, designated to the Swing Line Lender Chase with such proceedsproceeds on the requested Borrowing Date.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line LenderChase, at any time and in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower or any Subsidiary Borrower (which hereby irrevocably directs the Swing Line Lender Chase to act on its behalf) ), request each Multi-Currency Lender Lender, including Chase, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Commitment Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.3 shall apply) ), each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to Chase for the Swing Line Lender for its own account of Chase at the office specified for the Swing Line Lender in Section 14.2 of Chase prior to 1:00 P.M. 12:00 Noon (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(dc) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (cb) of Section 4.1subsection 2.3, one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Lender hereby agrees to and will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line LenderChase, in immediately available funds, the amount of its participationparticipation and, upon receipt thereof, Chase will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender Chase has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender and Chase receives any payment on account thereof, the Swing Line Lender Chase will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender Chase is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender Chase any portion thereof previously distributed by the Swing Line Lender Chase to it in like funds as such payment is required to be returned by the Swing Line LenderChase.
Appears in 1 contract
Sources: Credit Agreement (Scotts Company)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Multi-Currency Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, provided that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may (i) the sum of the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum AvailabilityAggregate Multi-Currency Commitment or (ii) the Available Multi-Currency Commitment be less than zero. Amounts borrowed by the Company under this Section 4.1 subsection 6.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.11:00 A.M., New York City time time) on the requested borrowing date, date specifying the amount of each requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more a whole multiple of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made Loans shall be evidenced by a promissory note of the Company substantially in the form of Exhibit C, with appropriate insertions (the "Swing Line Note"), payable to the order of the Swing Line Lender to and representing the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a)Loans, which amounts shall be due and payable (whether at maturity or by acceleration) with interest thereon as set forth prescribed in this Agreement and, in any event, on the Multi-Currency Termination Datesubsection 10.6. The Company hereby agrees that the Swing Line Lender is hereby authorized to record (i) the date and borrowing date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of and interest with respect to each the Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shallNote and, in the absence of manifest error, any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided, however, provided that the failure of the Swing Line Lender to make any such recording recordation (or any error in such recording recordation) shall not in any way affect the Payment Obligations of the Company hereunderhereunder or under such Note. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Termination Date and (c) bear interest for the period from the Closing Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, subsection 10.6.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender Lender, including Chase, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Multi-Currency Commitment Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jm) of Section 12.1 15 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 6.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender Chase in Section 14.2 subsection 17.3 prior to 1:00 P.M. 11:00 A.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1subsection 6.1, one of the events described in paragraph (jm) of Section 12.1 15 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Multi-Currency Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Multi-Currency Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
(f) Notwithstanding the foregoing, no Multi-Currency Lender shall be required to make such a Revolving Credit Loan to the Company for the purpose of refunding a Swing Line Loan pursuant to clause (c) above or to purchase a participating interest in a Swing Line Loan pursuant to clause (d) above if, prior to the making by the Swing Line Lender of such Swing Line Loan, the Swing Line Lender has received written notice from such Multi-Currency Lender specifying that such Multi-Currency Lender believes in good faith that a Default or Event of Default has occurred and is continuing, describing the nature of such Default or Event of Default and stating that, as a result thereof, such Multi-Currency Lender shall cease to make such Revolving Credit Loans or purchase such participating interests, as the case may be; provided that the obligation of such Multi-Currency Lender to make such Revolving Credit Loans and to purchase such participating interests shall be reinstated upon the earlier to occur of (i) the date upon which such Multi-Currency Lender notifies the Swing Line Lender that its prior notice has been withdrawn and (ii) the date upon which the Default or Event of Default specified in such notice no longer is continuing (it being understood that, in the event that such Default or Event of Default was not continuing at the time that the Swing Line Lender received such notice, such Multi-Currency Lender shall be obligated to make its Revolving Credit Loan or purchase its participating interest in such Swing Line Loan promptly upon discovery that its good faith belief was erroneous).
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the each Swing Line Lender Bank severally agrees to make swing line short-term funding loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”"SWING LINE LOANS") to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000such Swing Line Bank's Swing Line Commitment; provided, howeverPROVIDED, that at no time (Swing Line Loans may be made if, after giving effect to thereto, (i) the making Aggregate Outstanding Extensions of Credit of all the Banks would exceed the Aggregate Commitment or (ii) the aggregate outstanding principal amount of Swing Line Loans of any Swing Line Bank would exceed such Swing Line Loan and Bank's Swing Line Commitment.
(b) The Company may borrow under the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of Swing Line Commitments during the Commitment PeriodPeriod on any Business Day, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The PROVIDED that the Company shall give the Swing Line Lender Administrative Agent irrevocable notice, which telephonic notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Administrative Agent prior to 1:00 3:00 P.M., New York City time time, on the requested borrowing dateBorrowing Date and shall be promptly confirmed in writing), specifying the amount of each requested to be borrowed. Each borrowing under the Swing Line LoanCommitments shall be in an amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof. The Each such notice shall be in writing or by fax in the form of Exhibit F and shall include the information required as set forth therein. During the Commitment Period, the Company may use the Swing Line Lender shall not make any Commitments by borrowing, prepaying the Swing Line Loan Loans in whole or in part, and reborrowing, all in accordance with the period commencing on the first Business Day after it receives written terms and conditions hereof. Upon receipt of any such notice from the Company, the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of promptly notify each Swing Line Loan will be made available by the Bank thereof. Each Swing Line Lender Bank will make the amount of its pro rata share of each borrowing (determined on the basis of its Swing Line Commitment) available to the Company by crediting Administrative Agent for the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed Administrative Agent specified in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant subsection 9.2 prior to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event4:00 P.M. New York City time, on the Multi-Currency Termination DateBorrowing Date requested by the Company in funds immediately available to the Administrative Agent. The Such borrowing will then be made available to the Company hereby agrees that by the Administrative Agent at the office of the Administrative Agent specified in subsection 9.2 or to an account designated by the Company with the aggregate of the amounts made available to the Administrative Agent by the Swing Line Lender is authorized to record (i) Banks and in like funds as received by the date and amount of each Administrative Agent. Each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) will bear interest at the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderBase Rate.
(c) The Swing Line Lender, Administrative Agent may at any time in its sole and absolute discretiondiscretion after the occurrence and during the continuance of a Default or an Event of Default, mayand, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of with respect to each Swing Line Loans outstanding or (ii) Loan which has not been repaid by the Company in immediately available funds prior to 10:30 A.M., New York City time, on the last seventh Business Day of any calendar week after the Borrowing Date with respect to such Swing Line Loan shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender Administrative Agent to act on its behalf) request prior to 12:00 Noon, New York City time, each Multi-Currency Lender Bank on such seventh day after the Borrowing Date with respect to such Swing Line Loan to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Bank's Commitment Percentage of the amount of the such Swing Line Loans Loan (the “Refunded Swing Line Loans”) outstanding on the date such notice is given"MATURING SWING LINE LOANS"). Unless any of the events described in paragraph (jf) of Section 12.1 7 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.25 shall apply) each Multi-Currency Lender Bank shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender for its own account Banks at the office of the Administrative Agent specified for the Swing Line Lender in Section 14.2 subsection 9.2 prior to 1:00 P.M. (11:00 A.M., New York City time) , in funds immediately available on the one Business Day next succeeding after the date such notice is given. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Maturing Swing Line LoansLoan. To the extent that any Multi-Currency Lender fails Each Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this subsection 2.25(c) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be a Base Rate Loan.
(d) If, If prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, this subsection 2.25 one of the events described in paragraph (jf) of Section 12.1 7 shall have occurred, each Multi-Currency Lender will, Bank will on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Maturing Swing Line Loan that was to have been refunded with the proceeds of such Revolving Credit Loan in an amount equal to its Commitment Percentage of such Refunded Maturing Swing Line Loan. Each Multi-Currency Lender Bank will immediately transfer to the Swing Line LenderAdministrative Agent, in immediately available funds, the amount of its participationparticipation and upon receipt thereof (i) the Administrative Agent will make such funds available to each Swing Line Bank based pro rata on their respective portion of such Swing Line Loan and (ii) each such Swing Line Bank will deliver to the Administrative Agent, and the Administrative Agent will in turn promptly deliver to each such Bank, a Swing Line Loan participation certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender Administrative Agent has received from any Multi-Currency Lender Bank such Multi-Currency Lender’s Bank's participating interest in a Refunded Maturing Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender Administrative Agent receives any payment on account thereof, the Swing Line Lender Administrative Agent will distribute to such Multi-Currency Lender Bank its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s Bank's participating interest was outstanding and funded) in like funds as received); providedPROVIDED, howeverHOWEVER, that in the event that such payment received by the Swing Line Lender Administrative Agent is required to be returned, such Multi-Currency Lender Bank will return to the Swing Line Lender Administrative Agent any portion thereof previously distributed by the Administrative Agent to it.
(f) Each Bank's obligation to purchase participating interests pursuant to this subsection 2.25 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 Bank or the Company may have against the Administrative Agent or any Swing Line Lender to it Bank, the Company or anyone else for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any adverse change in like funds as such payment is required to be returned the financial condition of the Company; (iv) any breach of this Agreement by the Swing Line LenderCompany or any other Bank; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “"Swing Line Loan”; collectively, the “Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time; and
(b) The Swing Line Bank may on the terms and subject to the conditions hereinafter set forth (including Section 4.3) make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Lenders; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments. All Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement. Each Swing Line Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Lender's obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time.
(b) The Swing Line Bank may, on the terms and subject to the conditions hereinafter set forth (including Section 4.3), make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the Total Floor Plan Loan Commitment; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the Total Floor Plan Loan Commitment.
(c) Unless otherwise refinanced pursuant to Section 4.5, all Swing Line Loans (excluding the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement, and all other Swing Line Loans shall be due and payable on each Floor Plan Adjustment Date. Each Swing Line Loan that is a Eurodollar Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Lender’s obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender Chase agrees to make swing line loans to the Parent (individually, a “"Swing Line Loan”"; collectively, collectively the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided15,000,000, however, provided that at no time (after giving effect to shall the making aggregate principal amount of such Swing Line Loan and the use of the proceeds thereof) may the Loans outstanding, when added to Chase's then Aggregate Outstanding Multi-Currency Revolving Extensions of Credit, exceed Chase's Revolving Credit exceed the Maximum AvailabilityCommitment. Amounts borrowed by the Company under this Section 4.1 subsection 2.16 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each borrowing of Swing Line Lender irrevocable notice, which notice Loans shall be in substantially the form an amount equal to $100,000 or a whole multiple of Exhibit H-3 $100,000 in excess thereof. The Parent shall give Chase irrevocable notice (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Chase prior to 1:00 P.M.11:00 A.M., New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender Chase to the Company Parent at the office of Chase by crediting the account of the Company designated to the Swing Line Lender Parent at such office with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender Prior to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available fundsRestatement Effective Date, the aggregate unpaid principal amount of all Parent issued a promissory note to evidence the Swing Line Loans made by such Chase to the Parent, substantially in the form of Exhibit C to this Agreement (the "Swing Line Lender pursuant to Section 4.1(aNote"), which amounts shall be due payable to the order of Chase and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on representing the Multi-Currency Termination Date. The Company hereby agrees that obligation of the Parent to pay the unpaid principal amount of the Swing Line Lender Loans made to the Parent, with interest thereon as prescribed in subsection 2.19. The Swing Line Note shall continue to be outstanding on the Restatement Effective Date and shall continue to evidence the Swing Line Loans. Chase is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) the Parent and (ii) the date and amount of each payment or prepayment of principal thereof, on the appropriate schedule annexed to and constituting a part of and interest with respect to each the Swing Line Loan made by the Company to Note (or any continuation thereof) and any such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided. The Swing Line Loans shall mature on the Termination Date and bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, howeverand payable as specified in, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 2.19.
(c) The Swing Line Lender, Chase at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Parent (which hereby irrevocably directs the Swing Line Lender Chase to act on its behalf) request prior to 11:00 A.M. (New York City time) each Multi-Currency Lender Revolving Credit Lender, including Chase, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) to the Parent in an amount equal to such Multi-Currency Revolving Credit Lender’s 's Revolving Credit Commitment Percentage of the amount of the Swing Line Loans made to the Parent (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given; provided, that no such request shall be made at any time when the aggregate principal amount of the Swing Line Loans at such time does not exceed $1,000,000 (such Swing Line Loans which in the aggregate do not exceed $1,000,000 are referred to herein as the "Lesser Swing Line Loans"). Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.16 shall apply) each Multi-Currency Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan to the Parent available to Chase for the Swing Line Lender for its own account of Chase at the office of Chase specified for the Swing Line Lender in Section 14.2 subsection 11.2 prior to 1:00 2:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line LoansLoans of the Parent. To the extent that any Multi-Currency Lender fails Each Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this subsection 2.16(c) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be an ABR Loan.
(d) If, If prior to the making of a Revolving Credit Loan to any Revolving Credit Borrower pursuant to paragraph (c) of Section 4.1, this subsection 2.16 one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Revolving Credit Lender will, will on the date such Revolving Credit Loan was to have been mademade or the date such Revolving Credit Loan would have otherwise been made had the Swing Line Loans then outstanding not been Lesser Swing Line Loans, purchase an undivided participating interest in the Refunded Swing Line Loan Loans or Lesser Swing Line Loans, as the case may be, in an amount equal to its Revolving Credit Commitment Percentage of such Refunded Swing Line LoanLoans or Lesser Swing Line Loans, as the case may be. Each Multi-Currency Revolving Credit Lender will immediately transfer to the Swing Line LenderChase, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.in
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender JPMorgan Chase Bank agrees to make swing line loans to each Borrower (individually, a “Swing Line Loan”; collectively, collectively the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided15,000,000, however, provided that at no time (after giving effect to shall the making aggregate principal amount of such Swing Line Loan and the use of the proceeds thereof) may the Loans outstanding, when added to JPMorgan Chase Bank’s then Aggregate Outstanding Multi-Currency Revolving Extensions of Credit, exceed JPMorgan Chase Bank’s Revolving Credit exceed the Maximum AvailabilityCommitment. Amounts borrowed by the Company under this Section 4.1 subsection 2.16 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each borrowing of Swing Line Lender irrevocable notice, which notice Loans shall be in substantially the form an amount equal to $100,000 or a whole multiple of Exhibit H-3 $100,000 in excess thereof. The applicable Borrower shall give JPMorgan Chase Bank irrevocable notice (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender JPMorgan Chase Bank prior to 1:00 P.M.11:00 A.M., New York City time time), on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender JPMorgan Chase Bank to the Company applicable Borrower at the office of JPMorgan Chase Bank by crediting the account of the Company designated to the Swing Line Lender such Borrower at such office with such proceeds. The Swing Line Loans shall mature on the Termination Date and bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding the applicable interest rate per annum determined as provided in, and payable as specified in, subsection 2.19.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, JPMorgan Chase Bank at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company applicable Borrower (which hereby irrevocably directs the Swing Line Lender direct JPMorgan Chase Bank to act on its their behalf) request prior to 11:00 A.M., New York City time, each Multi-Currency Lender Lender, including JPMorgan Chase Bank, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) to such Borrower in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans made to such Borrower (the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided, that no such request shall be made at any time when the aggregate principal amount of the Swing Line Loans at such time does not exceed $1,000,000 (such Swing Line Loans which in the aggregate do not exceed $1,000,000 are referred to herein as the “Lesser Swing Line Loans”). Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.16 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan to the applicable Borrower available to JPMorgan Chase Bank for the Swing Line Lender for its own account of JPMorgan Chase Bank at the office of JPMorgan Chase Bank specified for the Swing Line Lender in Section 14.2 subsection 11.2 prior to 1:00 P.M. (2:00 P.M., New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share Loans of such Refunded Swing Line Borrower. Each Revolving Credit Loan made pursuant to this subsection 2.16(b) shall be an ABR Loan.
(dc) If, If prior to the making of a Revolving Credit Loan to any Borrower pursuant to paragraph (cb) of Section 4.1, this subsection 2.16 one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Lender will, will on the date such Revolving Credit Loan was to have been mademade or the date such Revolving Credit Loan would have otherwise been made had the Swing Line Loans then outstanding not been Lesser Swing Line Loans, purchase an undivided participating interest in the Refunded Swing Line Loan Loans or Lesser Swing Line Loans, as the case may be, in an amount equal to its Commitment Percentage of such Refunded Swing Line LoanLoans or Lesser Swing Line Loans, as the case may be. Each Multi-Currency Lender will immediately transfer to the Swing Line LenderJPMorgan Chase Bank, in immediately available funds, the amount of its participationparticipation and upon receipt thereof JPMorgan Chase Bank will deliver to such Lender a Swing Line Loan participation certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender JPMorgan Chase Bank has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the or Lesser Swing Line Lender Loan, as the case may be, JPMorgan Chase Bank receives any payment on account thereof, the Swing Line Lender JPMorgan Chase Bank will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender JPMorgan Chase Bank is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender JPMorgan Chase Bank any portion thereof previously distributed by JPMorgan Chase Bank to it.
(e) Each Lender’s obligation to purchase on a pro rata basis participating interests pursuant to this subsection 2.16 shall not be affected by any circumstance (except for any circumstance resulting solely from the Swing Line gross negligence or willful misconduct of JPMorgan Chase Bank), including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any Borrower may have against JPMorgan Chase Bank, the Company, the Subsidiary Borrowers or any other Person for any reason whatsoever; (ii) any adverse change in the condition (financial or otherwise) of the Company; (iii) any breach of this Agreement by any Borrower or any other Lender; or (iv) any other circumstance, happening or event whatsoever, whether or not similar to it in like funds as such payment is required to be returned by any of the Swing Line Lenderforegoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender Bank hereby agrees to make swing line loans to the Company (individually, a “Committed Swing Line Loan”; collectively, collectively the “Committed Swing Line Loans”; or the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender Commitment; provided that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans, together with the aggregate unpaid principal amount of all Revolving Credit Loans, LOC Obligations and all Bid Loans at any one time outstanding, may not exceed the aggregate amount of the Commitments. Amounts borrowed by the Company under this subsection 2.19 may be repaid and, through but excluding the Termination Date, reborrowed. All Committed Swing Line Loans shall be made as ABR Loans and may not be converted into Eurodollar Loans. Each borrowing of Swing Line Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company shall give the Administrative Agent (which shall promptly notify the Swing Line Bank) irrevocable notice (which notice must be received by the Administrative Agent prior to 2:00 P.M., New York City time) on the requested Borrowing Date specifying the amount of the requested Committed Swing Line Loan to be made by the Swing Line Bank. The proceeds of each Committed Swing Line Loan shall be made available by the Swing Line Bank to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified prior to 4:30 p.m. on the requested Borrowing Date.
(b) The Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender Bank to the Company shall be evidenced by a promissory note of the Company substantially in the form of Exhibit I, with appropriate insertions (the “Swing Line Note”), payable to the order of the Swing Line Bank and representing the obligation of the Company to pay the unpaid principal amount of the Swing Line Loans made to the Company, with interest thereon as prescribed in subsection 2.9. The Swing Line Bank is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) the Company and (ii) the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of and interest with respect to each its Swing Line Loan made by the Company to Note (or any continuation thereof) and any such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided. Each Swing Line Note shall (a) be dated the Closing Date, however(b) be stated to mature on the Termination Date and (c) bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderand payable as specified in, subsection 2.9.
(c) The In the event that the Company has not notified the Administrative Agent of its intent to repay the Swing Line LenderLoans made on any Borrowing Date by 12:00 noon New York City time on the Business Day immediately following such Borrowing Date and has not in fact repaid such Swing Line Loans (including accrued interest thereon) in full by such time, at any time in its sole and absolute discretion, may, and (i) at any time as there the Company shall be $25,000,000 deemed to have made an irrevocable request to the Administrative Agent under subsection 2.3 (which for purposes of this subsection shall be deemed to be timely and sufficient) for a borrowing on such date of Revolving Credit Loans that are ABR Loans in an aggregate amount equal to the then unpaid aggregate principal amount of such Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available made to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is givenCompany. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded such Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIn the event that for any reason whatsoever (including, prior without limitation, the occurrence of an event specified in paragraph (g) of Section 7 with respect to the making of a Revolving Credit Loan pursuant to Company), the procedures set forth in the foregoing paragraph (c) of Section 4.1are not followed, one each Bank shall, upon notice from the Administrative Agent, promptly purchase from the Swing Line Bank participations in (or, if and to the extent specified by the Swing Line Bank, a direct interest in) the Swing Line Loans made by the Swing Line Bank (collectively, the “Unrefunded Swing Line Loans”) in an aggregate amount equal to the amount of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to it would have been made, purchase an undivided participating interest obligated to make pursuant to the procedures set forth in the Refunded Swing Line foregoing paragraph (c).
(e) Each Bank shall, not later than 4:00 P.M. New York City time on the Business Day on which such notice is received (if such notice is received by 2:15 P.M. New York City time) or 9:00 A.M. New York City time on the next succeeding Business Day (if such notice is received after 2:15 P.M. New York City time), make available the amount of the Revolving Credit Loan to be made by it (or the amount of the participations or direct interests to be purchased by it, as the case may be) to the Administrative Agent at the applicable office of the Administrative Agent specified in an subsection 9.2 and the amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer so received by the Administrative Agent shall promptly be made available to the Swing Line LenderBank by remitting the same, in immediately available funds, to the amount Swing Line Bank, in accordance with the provisions of its participationparagraph (g) below.
(ef) Whenever, at any time after the Swing Line Lender Bank has received from any Multi-Currency Lender Bank such Multi-Currency LenderBank’s participating interest in a Refunded an Unrefunded Swing Line Loan pursuant to clause paragraph (d) above, the Swing Line Lender Bank receives any payment on account thereof, the Swing Line Lender Bank will distribute to such Multi-Currency Lender Bank its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency LenderBank’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender Bank is required to be returned, such Multi-Currency Lender Bank will return to the Swing Line Lender Bank any portion thereof previously distributed by the Swing Line Lender Bank to it it.
(g) All payments (including prepayments) to be made by the Company hereunder and under the Swing Line Notes, whether on account of principal, interest, fees or otherwise, shall be made without set off, counterclaim or any other deduction whatsoever and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Swing Line Bank, at the Administrative Agent’s office specified in subsection 9.2, in Dollars and in immediately available funds, and upon receipt by the Administrative Agent of any payment made by the Company in accordance with the terms of this Agreement and the Swing Line Notes, the Company shall have satisfied its payment obligation with respect to the obligation on account of which such payment was made. Any such payment made at or after 1:00 P.M. New York City time, on any day shall be deemed made on the following Business Day. The Administrative Agent shall distribute such payments to the Swing Line Bank promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(h) Anything in this Agreement to the contrary notwithstanding (including, without limitation, in subsection 4.2), the obligation of each Bank to make its Revolving Credit Loan (or purchase its participation or direct interest in such Swing Line Loan, as the case may be) pursuant to this subsection 2.19 is required unconditional under any and all circumstances whatsoever and shall not be subject to be returned by set-off, counterclaim or defense to payment that such Bank may have or have had against the Company, the Administrative Agent, the Swing Line LenderBank or any other Bank and, without limiting any of the foregoing, shall be unconditional irrespective of (i) occurrence of any Default or Event of Default, (ii) the financial condition of the Company, any Affiliate, the Administrative Agent, the Swing Line Bank or any other Bank or (iii) the termination or cancellation of the Commitments. The Company agrees that any Bank so purchasing a participation (or direct interest) in such Swing Line Loan may exercise all rights of set-off, bankers’ lien, counter claim or similar rights with respect to such participation as fully as if such Bank were a direct holder of a Swing Line Loan in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Western Union CO)
Swing Line Commitments. (a) Subject to Upon the terms and subject to the conditions hereof, the Swing Line Lender agrees to make swing line loans (individuallyAdministrative Agent, in its capacity as a “Swing Line Loan”; collectivelyBank, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment agrees, at any time and from time to time during the Commitment Period Period, to make loans (“Swing-Line Loans”) on a revolving credit basis in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (the Administrative Agent shall not be obligated make a Swing-Line Loan if, after giving effect to the making of such Swing Swing-Line Loan and any payment of Outstandings made directly by the use Administrative Agent, for the account of the Companies, from the proceeds thereof) may of such Swing-Line Loan, the Aggregate Outstanding Multi-Currency Extensions of Credit Total Outstandings would exceed the Maximum AvailabilityTotal Commitments. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing The Swing-Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give evidenced by a promissory note of the Swing Line Lender irrevocable notice, which notice shall be Companies substantially in substantially the form of Exhibit H-3 G-2 hereto (a the “Swing Swing-Line Loan RequestNote”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time shall bear interest on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing balance thereof outstanding from time to time at either the Floating Rate or a rate agreed upon in a separate writing by the Company and the Administrative Agent. Swing-Line Loans made by such Swing shall mature on the Termination Date, when all amounts then outstanding under the Swing-Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable in full. Interest on any Swing-Line Loan shall be payable on the last day of each March, June, September and December and at maturity. Principal of any Swing-Line Loan may be prepaid at any time in whole or in part (whether at maturity in minimum amounts of $100,000 or an integral multiple thereof) and without premium or penalty of any kind. Notice of prepayment of Swing-Line Loans shall be given to the Administrative Agent by acceleration) as set forth the Company orally confirmed in this Agreement andwriting by telecopier or in writing by telecopier, no later than 2:00 p.m. on the date of such prepayment. The Administrative Agent, in any event, on the Multi-Currency Termination Date. The Company its capacity as a Bank is hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Swing-Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, thereof in the its books and records of such Swing and/or on a schedule attached to the Swing-Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recordedNote; provided, however, that any failure by the failure Administrative Agent to make any such recording entry or any error in making such recording entry shall not in any way limit or otherwise affect the Payment Obligations obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole Companies hereunder and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Swing-Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line LoanNote.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during prior to the Commitment Period Revolving Credit Termination Date and to the Borrower or any Regular Subsidiary Borrower (i) each Swing Line Lender severally (but not jointly) agrees to make Swing Line Loans in Dollars or euros in an aggregate principal amount not to exceed $30,000,000 at any one time outstanding not to exceed $30,000,000(each of the foregoing individually, a "Swing Line Loan"; providedcollectively the "Swing Line Loans"), howeverwhich Swing Line Loans may be borrowed under any of the Facility A Commitments, that at no time (the Facility B Commitments, the Facility C Commitments or the Facility D Commitments; provided that, after giving effect to the making of such Swing Line Loan Loans, the aggregate principal amount of Swing Line Loans (including any Sterling Swing Line Loans, Australian Dollar Swing Line Loans and Canadian Dollar Swing Line Loans) made under any Revolving Facility (including the Sterling Facility, Australian Facility and Canadian Facility) at any one time outstanding shall not exceed $80,000,000 or the Non-Dollar Currency Equivalent thereof and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Facility A Revolving Extensions of Credit shall not exceed the Maximum Availability. Amounts borrowed by Facility A Commitments, the Company under this Section 4.1 may be repaid andAggregate Facility B Revolving Extensions of Credit shall not exceed the Facility B Commitments, up to but excluding the last day Aggregate Facility C Revolving Extensions of Credit shall not exceed the Commitment Period, reborrowedFacility C Commitments and the Aggregate Facility D Revolving Extensions of Credit shall not exceed the Facility D Commitments. All Swing Line Loans in Dollars shall be made as Alternate Base Rate ABR Loans and Swing Line Loans in euros shall not be entitled to be converted into Eurodollar Loansmade on terms agreed upon by the relevant Swing Line Lender and the Borrower or applicable Regular Subsidiary Borrower. The Company Borrower or applicable Regular Subsidiary Borrower shall give the Swing Line Lender Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Administrative Agent at or prior to 1:00 P.M., New York City time time, on the requested borrowing dateBorrowing Date), specifying the amount of each requested Swing Line Loan, which shall be greater than or equal to a minimum amount to be agreed upon by the Borrower or applicable Regular Subsidiary Borrower and the relevant Swing Line Lender, and the Revolving Facility under which it is to be borrowed. The In giving irrevocable notice, the Borrower or the applicable Regular Subsidiary Borrower shall designate, at its option, one or two Swing Line Lenders to make one or more Swing Line Loans in the relevant currency. Upon such notice, the Administrative Agent shall promptly notify each applicable Swing Line Lender shall not make any thereof. Each Swing Line Loan Lender which has been designated by the Borrower or the applicable Regular Subsidiary Borrower in its irrevocable notice shall make the amount of its ratable share of each borrowing in the period commencing on currency requested available to the first Business Day after it receives written notice from Borrower or applicable Regular Subsidiary Borrower in the manner directed by the Administrative Agent or any Multi-Currency Lender that one or more of on the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsrequested Borrowing Date.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording Lenders or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, them at any time and in their or its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower or applicable Regular Subsidiary Borrower (which hereby irrevocably directs the Swing Line Lender Lenders to act on its behalf) ), request each Multi-Currency Revolving Credit Lender under the applicable Revolving Facility, including each Swing Line Lender, with respect to all other Swing Line Loans, to make a Revolving Credit Loan (as an Alternate Base Rate Loanunder such Revolving Facility, in the currency of the Swing Line Loan(s) made by such Swing Line Lender(s) in an amount equal to such Multi-Currency Lender’s Commitment 's Revolving Percentage under such Revolving Facility of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.6 shall apply) ), each Multi-Currency Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender for its own account Lenders, at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. 12:00 Noon (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(dc) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (cb) of Section 4.1subsection 2.6, one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Revolving Credit Lender under the applicable Revolving Facility hereby agrees to and will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the each Refunded Swing Line Loan in an amount equal to its Commitment Revolving Percentage under such Revolving Facility of such Refunded Swing Line Loan. Each Multi-Currency Such Revolving Credit Lender will immediately transfer to the Administrative Agent for the account of the Swing Line LenderLenders, in immediately available fundsfunds denominated in Dollars, the Dollar Equivalent (if applicable) of the amount of its participationparticipations and, upon its receipt of its ratable share thereof, each Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount. On such date, any Swing Line Loans not denominated in Dollars shall, without any further action or notice being required, be converted to and become denominated in Dollars in an amount equal to the Dollar Equivalent of the amount thereof on such date.
(ed) Whenever, at any time after the any Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the and such Swing Line Lender receives any payment on account thereof, the such Swing Line Lender will distribute to such Multi-Currency Revolving Credit Lender through the Administrative Agent its participating interest in such Dollar Equivalent amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s 's participating interest was outstanding and funded) in like funds as receiveddenominated in Dollars; provided, however, that in the event that such payment received by the such Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the such Swing Line Lender through the Administrative Agent any portion thereof previously distributed by the such Swing Line Lender to it in like funds as such payment is required to be returned by the such Swing Line Lender.
Appears in 1 contract
Sources: Credit Agreement (Scotts Company)
Swing Line Commitments. (a) Subject to the terms and conditions hereofset forth herein, the each Swing Line Lender Bank severally agrees to make a portion of the credit otherwise available from time to time by making swing line loans advances (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time on any Business Day during the Commitment Period applicable to such Swing Line Bank. Such Swing Line Loans shall be denominated in an aggregate principal amount Dollars and, in the aggregate, shall not exceed (x) at any one time outstanding not (i) for each Swing Line Bank (1) such Swing Line Bank’s Swing Line Commitment then in effect and (2) when aggregated to exceed $30,000,000; providedsuch Swing Line Bank’s outstanding Revolving Credit Loans, howeverparticipations in Letters of Credit and such Swing Line Bank’s unfunded participations in Swing Line Loans made by any other Swing Line Bank, that such Swing Line Bank’s Revolving Credit Commitment then in effect and (ii) for all Swing Line Loans, the amount of the Swing Line Sublimit or (y) at no the time (after giving effect to the making of such Swing Line Loan and Loan, the use aggregate Available Revolving Credit Commitments of the proceeds thereof) may Banks. Within the Aggregate Outstanding Multi-Currency Extensions of Credit exceed foregoing limits, and subject to the Maximum Availability. Amounts other terms and conditions hereof, amounts borrowed by the Company under this Section 4.1 subsection 2.19 may be repaid and, up to but excluding the last day of the Commitment Period, and reborrowed. All Immediately upon the making of a Swing Line Loan, each Bank shall be deemed to have purchased, and hereby irrevocably and unconditionally agrees to purchase, from the applicable Swing Line Bank a risk participation in such Swing Line Loan in an amount equal to such Bank’s Revolving Credit Commitment Percentage of such Swing Line Loan.
(b) Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled on notice to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable noticeBanks and the Administrative Agent, given not later than 1:00 P.M. on the Business Day on which the proposed Swing Line Loan is to be made. Such notice requirement shall be satisfied by the delivery of a Borrowing Certificate for such Swing Line Loan and such notice shall specify therein (A) the requested date of such Swing Line Loans (which shall be a Business Day), (B) the requested aggregate amount of Swing Line Loans being requested and (C) the requested account to which the proceeds of the requested Swing Line Loans are to be transferred. Upon fulfillment of the applicable conditions set forth in substantially Section 4.2, each Swing Line Bank shall make its ratable portion of the form requested Swing Line Loans (such ratable portion to be calculated based upon such Swing Line Bank’s Swing Line Commitment to the total Swing Line Commitments of Exhibit H-3 all of the Swing Line Banks) available to the account designated by the Company for such purpose on the date specified in such Borrowing Notice, in same day funds, before 3:00 P.M. on the date the Company has requested such Swing Line Loans.
(c) The failure of any Swing Line Bank to make the Swing Line Loan to be made by it as part of any requested Swing Line Loans shall not relieve any other Swing Line Bank of its obligation hereunder to make its Swing Line Loan on the date of such borrowing of Swing Line Loans, but no Swing Line Bank shall be responsible for the failure of any other Swing Line Bank to make the Swing Line Loan on the date of any borrowing of Swing Line Loans.
(d) Upon written demand by a Swing Line Bank, with a copy of such demand to the Administrative Agent, each other Bank will purchase from such Swing Line Bank, and such Swing Line Bank shall sell and assign to each such other Bank, such other Bank’s Revolving Credit Commitment Percentage of such outstanding Swing Line Loan (a “Swing Line Loan RequestParticipation Interest”), and which notice must be received by making available to the Administrative Agent for the account of such Swing Line Bank, by deposit to the at the applicable office of the Administrative Agent specified in subsection 9.2 or such other office specified by the Swing Line Lender prior Administrative Agent from time to 1:00 P.M.time, New York City time on in same day funds, an amount equal to the requested borrowing date, specifying portion of the outstanding principal amount of each requested Swing Line Loan. The Swing Line Lender shall not make any such Swing Line Loan in the period commencing on the first Business Day after it receives written to be purchased by such Bank. The Company hereby agrees to each such sale and assignment. Each Bank hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent Agent, to purchase its Revolving Credit Commitment Percentage of an outstanding Swing Line Loan on the next Business Day after the date of demand therefor. Each Bank acknowledges and agrees that its obligation to acquire participations in Swing Line Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any Multi-Currency Lender that one Event of Default or more reduction or termination of the conditions precedent contained in Section 9.2 Revolving Credit Commitments, and that each such payment shall not on be made without any offset, abatement, withholding or reduction whatsoever. Upon any such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of assignment by any Swing Line Bank to any other Bank of a portion of a Swing Line Loan, such Swing Line Bank represents and warrants to such other Bank that such Swing Line Bank is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Loan, this Agreement, the Notes or the Company. The proceeds If and to the extent that any Bank shall not have so made the amount of each such Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting Administrative Agent, such Bank agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date such Bank is required to have made such amount available to the Administrative Agent until the date such amount is paid to the Administrative Agent, at the Overnight Rate. If such Bank shall pay to the Administrative Agent such amount for the account of the Company designated to the such Swing Line Lender with Bank on any Business Day, such proceeds.
(b) The Company hereby agrees that each amount so paid in respect of principal shall constitute a Swing Line Loan made by such Bank on such Business Day for purposes of this Agreement, and the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid outstanding principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there Bank shall be $25,000,000 in aggregate principal reduced by such amount of Swing Line Loans outstanding or (ii) on the last such Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationDay.
(e) Whenever, at At any time after the any Bank has funded a risk participation in a Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Loan, if the applicable Swing Line Loan pursuant to clause (d) above, the Swing Line Lender Bank receives any payment on account thereof, the of such Swing Line Lender Loan, such Swing Line Bank will promptly distribute to such Multi-Currency Lender Bank its participating interest in such amount (appropriately adjusted, ratable share thereof in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like same funds as received; provided, however, that in the event that such payment those received by the such Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line LenderBank.
Appears in 1 contract
Sources: Credit Agreement (Western Union CO)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under Borrowers (on a joint and several basis as between the Aggregate Commitment Borrowers) from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed an amount agreed from time to time between the Parent Borrower and the Swing Line Lender, but in any event not greater than $30,000,000250,000,000; provided, however, provided that at no time (after giving effect to may the making sum of such the Dollar Equivalent of the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit Revolving L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrowers under this Section 4.1 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrowers shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar EurocurrencyTerm SOFR Loans. The Company Parent Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 12:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent (or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date later time as may be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available agreed by the Swing Line Lender to in its reasonable discretion) on the Company by crediting requested Borrowing Date specifying the account identity of each applicable Borrower (if not the Parent Borrower) and the amount of the Company designated to the requested Swing Line Lender with such proceedsLoan, which shall be in a minimum amount of $1,000,000 or whole multiples of $500,000 in excess thereof.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Parent Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under Section 9.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the joint and several obligations of the Borrowers to prepay Swing Line Loans in accordance with the provisions of Section 4.4(b)(vi). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (dc) of this Section 4.1 2.7 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any EurocurrencyTerm SOFR Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including any EurocurrencyTerm SOFR Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to a Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this Section 2.7(c), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from a Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with Sections 2.7(b) and 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving Lender or any Borrower may have against the Swing Line Lender, any 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 condition (financial or otherwise) of any Borrower, (iv) any breach of this Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Lender, (v) any inability of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Hertz Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to may, in its sole discretion, make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00025.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.8 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar EurocurrencyTerm Benchmark Loans. The Company Borrower shall give the Swing Line Lender and Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender and Administrative Agent prior to 1:00 P.M., 2:00 P.M. New York City time (or such later time as may be agreed by the Swing Line Lender in its reasonable discretion), on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, by crediting the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records account of such Swing Line Lender and Borrower at such office with such proceeds in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderDollars.
(cb) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 8.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 3.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.8 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the Administrative Agent Office prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all [[5629054]] purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent Office prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (c), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.8(c) and 2.8(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition [[5629054]] (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender; (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Frontdoor, Inc.)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”"SWING LINE LOAN") to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time.
(b) The Swing Line Bank may on the terms and subject to the conditions hereinafter set forth (including Section 4.3) make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Lenders; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments.
(c) Unless otherwise refinanced pursuant to Section 4.5, all Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement and all other Swing Line Loans shall be due and payable on each Floor Plan Adjustment Date. Each Swing Line Loan that is a Eurodollar Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Lender's obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, from time to time prior to the Revolving Credit Termination Date and to the Sterling Subsidiary Borrowers (i) the Sterling Swing Line Lender agrees to make swing line loans Sterling Swing Line Loans in Sterling in an aggregate principal amount not to exceed the Sterling equivalent of U.S.$20,000,000 at any one time outstanding (each of the foregoing individually, a “Sterling Swing Line Loan”; collectively, collectively the “Sterling Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000); providedprovided that, however, that at no time (after giving effect to the making of such Sterling Swing Line Loan Loans, the aggregate principal amount of Swing Line Loans under any Revolving Facility at any one time outstanding shall not exceed U.S.$100,000,000 and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Sterling Revolving Extensions of Credit shall not exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowedSterling Commitments. All Sterling Swing Line Loans shall be made as Alternate Base Reference Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company relevant Sterling Subsidiary Borrowers shall give the Swing Line Lender Sterling Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Sterling Administrative Agent at or prior to 1:00 P.M., New York City time London time, on the requested borrowing dateBorrowing Date (U.K.)), specifying the amount of each requested Sterling Swing Line Loan, which shall be greater than or equal to a minimum amount to be agreed upon by such Sterling Subsidiary Borrowers and the relevant Sterling Swing Line Lender. Upon such notice, the Sterling Administrative Agent shall promptly notify the Sterling Swing Line Lender thereof. The Sterling Swing Line Lender shall not make any Swing Line Loan the amount of each borrowing available to the relevant Sterling Subsidiary Borrowers in the period commencing manner directed by the Sterling Administrative Agent on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsrequested Borrowing Date.
(b) The Company hereby agrees that each Swing Line Loan made by the Sterling Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company relevant Sterling Subsidiary Borrower (which hereby irrevocably directs the Sterling Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Sterling Lender, including the Sterling Swing Line Lender, with respect to all other Sterling Swing Line Loans, to make a Revolving Credit Loan (as an Alternate Base Rate Sterling Loan) , in an amount equal to such Multi-Currency Sterling Lender’s Commitment Revolving Percentage under the Sterling Facility of the amount of the Sterling Swing Line Loans (the “Refunded Sterling Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 of the Credit Agreement shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.3 shall apply) ), each Multi-Currency Sterling Lender shall make the proceeds of its Revolving Credit Sterling Loan available to the Sterling Administrative Agent for the account of the Sterling Swing Line Lender for its own account Lender, at the office specified for of the Swing Line Lender in Section 14.2 Sterling Administrative Agent prior to 1:00 P.M. 12:00 Noon (New York City London time) in funds immediately available on the Business Day (U.K.) next succeeding the date such notice is given. The proceeds of such Revolving Credit Sterling Loans shall be immediately applied to repay the Refunded Sterling Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(dc) If, prior to the making of a Revolving Credit Sterling Swing Line Loan pursuant to paragraph (cb) of Section 4.1this subsection 2.3, one of the events described in paragraph (jf) of Section 12.1 8 of the Credit Agreement shall have occurred, each Multi-Currency Sterling Lender hereby agrees to and will, on the date such Revolving Credit Sterling Swing Line Loan was to have been made, purchase an undivided participating interest in the each Refunded Sterling Swing Line Loan in an amount equal to its Commitment Revolving Percentage under the Sterling Facility of such Refunded Sterling Swing Line Loan. Each Multi-Currency Such Revolving Credit Lender will immediately transfer to the Sterling Administrative Agent for the account of the Sterling Swing Line Lender, in immediately available funds, funds of the amount of its participationparticipations and, upon its receipt of its ratable share thereof, the Sterling Swing Line Lender will deliver to such Sterling Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Sterling Swing Line Lender has received from any Multi-Currency Sterling Lender such Multi-Currency Sterling Lender’s participating interest in a Refunded Sterling Swing Line Loan pursuant to clause (d) above, and the Sterling Swing Line Lender receives any payment on account thereof, the Sterling Swing Line Lender will distribute to such Multi-Currency Sterling Lender through the Sterling Administrative Agent its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as receivedinterest; provided, however, that in the event that such payment received by the Sterling Swing Line Lender is required to be returned, such Multi-Currency Sterling Lender will return to the Sterling Swing Line Lender through the Sterling Administrative Agent any portion thereof previously distributed by the Sterling Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to may, in its sole discretion, make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00025.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.8 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Term Benchmark Loans. The Company Borrower shall give the Swing Line Lender and Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender and Administrative Agent prior to 1:00 P.M., 2:00 P.M1:00 P.M. New York City time (or such later time as may be agreed by the Swing Line Lender in its reasonable discretion), on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, by crediting the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records account of such Swing Line Lender and Borrower at such office with such proceeds in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderDollars.
(cb) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 8.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 3.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.8 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the Administrative Agent Office prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving [[59972986453734]] Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent Office prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (c), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, [[59972986453734]] such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.8(c) and 2.8(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender; (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Frontdoor, Inc.)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the US Swing Line Lender agrees that, during the US Revolving Credit Commitment Period, it will make available to make the Borrower in the form of swing line loans (individually, a “Swing Line Loan”; collectively, the “US Swing Line Loans”) a portion of the credit otherwise available to the Company in Dollars Borrower under the Aggregate Commitment from time to time during US Revolving Credit Commitments; provided, that (i) the Commitment Period in an aggregate principal amount of US Swing Line Loans outstanding at any one time shall not exceed the US Swing Line Commitment then in effect (notwithstanding that the US Swing Line Loans outstanding at any time, when aggregated with the US Swing Line Lender’s other outstanding US Revolving Credit Loans hereunder, may exceed the US Swing Line Commitment then in effect or such US Swing Line Lender’s US Revolving Credit Commitment then in effect) and (ii) the Borrower shall not to exceed $30,000,000; providedrequest, howeverand the US Swing Line Lender shall not make, that at no time (any US Swing Line Loan if, after giving effect to the making of such US Swing Line Loan and Loan, the use aggregate amount of the proceeds thereof) may Available US Revolving Credit Commitments would be less than zero. During the Aggregate Outstanding Multi-Currency Extensions of US Revolving Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowedthe Borrower may use the US Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. All US Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsonly.
(b) The Company hereby agrees that each Borrower shall repay all outstanding US Swing Line Loan made by Loans on the US Revolving Credit Termination Date.
(c) Subject to the terms and conditions hereof, the Canadian Swing Line Lender agrees that, during the Canadian Revolving Credit Commitment Period, it will make available to WSCA in the Company pursuant to this Section 4.1 shall constitute the promise and obligation form of swing line loans (“Canadian Swing Line Loans”) a portion of the Company credit otherwise available to pay to such Swing Line LenderWSCA under the Canadian Revolving Credit Commitments; provided, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and aggregate principal amount of each Canadian Swing Line Loan made by such Loans outstanding at any time shall not exceed the Canadian Swing Line Lender pursuant to Section 4.1(aCommitment then in effect (notwithstanding that the Canadian Swing Line Loans outstanding at any time, when aggregated with the Canadian Swing Line Lender’s other outstanding Canadian Revolving Credit Loans hereunder, may exceed the Canadian Swing Line Commitment then in effect or such Canadian Swing Line Lender’s Canadian Revolving Credit Commitment then in effect) and (ii) WSCA shall not request, and the date and amount of each payment or prepayment of principal of and interest with respect to each Canadian Swing Line Lender shall not make, any Canadian Swing Line Loan made by if, after giving effect to the Company to making of such Canadian Swing Line LenderLoan, in the books and records aggregate amount of such the Available Canadian Revolving Credit Commitments would be less than zero. During the Canadian Revolving Credit Commitment Period, WSCA may use the Canadian Swing Line Lender Commitment by borrowing, repaying and reborrowing, all in such manner as is reasonable accordance with the terms and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of conditions hereof. Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line LoanCanadian Prime Rate Loans only.
(d) If, prior to WSCA shall repay all outstanding Canadian Swing Line Loans on the making of a Canadian Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationTermination Date.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender JPMorgan Chase Bank agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") available to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided5,000,000, howeverprovided that JPMorgan Chase Bank shall have no obligation to and shall not issue any Swing Line Loan if, that at no time (after giving effect to such issuance, the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Available Revolving Credit exceed the Maximum AvailabilityCommitment with respect to any Lender would be less than zero. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each borrowing of Swing Line Lender irrevocable notice, which notice Loans shall be in substantially the form an amount equal to $100,000 or a whole multiple of Exhibit H-3 $100,000 in excess thereof. The Borrower shall give JPMorgan Chase Bank irrevocable notice (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender JPMorgan Chase Bank prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender JPMorgan Chase Bank to the Company Borrower at the office of JPMorgan Chase Bank specified in subsection 10.2 by crediting the account of the Company designated to the Swing Line Lender Borrower at such office with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, JPMorgan Chase Bank at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs the Swing Line Lender JPMorgan Chase Bank to act on its behalf) request prior to 12:00 Noon (New York City time) each Multi-Currency Lender Lender, including JPMorgan Chase Bank, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment 's Revolving Credit Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.5 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to JPMorgan Chase Bank for the Swing Line Lender for its own account of JPMorgan Chase Bank at the office of JPMorgan Chase Bank specified for the Swing Line Lender in Section 14.2 subsection 10.2 prior to 1:00 2:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Each Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this subsection 2.5(b) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be an ABR Loan.
(dc) If, If prior to the making of a Revolving Credit Loan pursuant to paragraph (cb) of Section 4.1, this subsection 2.5 one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Lender will, will on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Revolving Credit Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line LenderJPMorgan Chase Bank, in immediately available funds, the amount of its participationparticipation and upon receipt thereof JPMorgan Chase Bank will deliver to such Lender a Swing Line Loan participation certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender JPMorgan Chase Bank has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender JPMorgan Chase Bank receives any payment on account thereof, the Swing Line Lender JPMorgan Chase Bank will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender JPMorgan Chase Bank is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender JPMorgan Chase Bank any portion thereof previously distributed by JPMorgan Chase Bank to it.
(e) Each Lender's obligation to purchase participating interests pursuant to this subsection 2.5 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 Swing Line Lender to it Borrower may have against JPMorgan Chase Bank, the Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any adverse change in like funds as such payment is required to be returned the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement by the Swing Line Borrower 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period (i) to any U.S. Borrower in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time 75,000,000 and (after giving effect ii) to the making Canadian Borrower in an aggregate principal amount at any one time outstanding not to exceed the Dollar Equivalent of such $15,000,000; provided that the Swing Line Loan and the use of the proceeds thereof) may Lender shall not make any Swing Line Loans if, after doing so, the Aggregate Outstanding Multi-Currency Extensions of Credit Tranche A Lender Exposure would exceed the Maximum AvailabilityAggregate Tranche A Commitment or the Aggregate Tranche A Credit Extensions would exceed the applicable limitation set forth in subsection 2.1(a)(i)(B) and, with respect to the Canadian Borrower, subsection 2.1(a)(ii). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans (x) made to any U.S. Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and (y) made to the Canadian Borrower shall be made in Canadian Dollars or in Dollars as ABR Loans. Swing Line Loans shall not be entitled to be converted into Eurodollar EurocurrencyTerm SOFR Loans or BA Equivalent Loans. The Company In the case of Swing Line Loans, the Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to (x) in the case of Swing Line Loans made to any U.S. Borrower, 2:00 P.M., New York City time and (y) in the case of Swing Line Loans made to the Canadian Borrower, 1:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The , which shall be in a minimum amount of $100,000.00 or whole multiples of $50,000.00 in excess thereof (or, in the case of Swing Line Lender shall not make any Swing Line Loan Loans denominated in Canadian Dollars, a minimum amount of Cdn$100,000.00 or whole multiples of Cdn$50,000.00 in excess thereof). In each case, the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more proceeds of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the applicable Swing Line Lender to the Company Borrower identified in such notice at an office of the applicable Swing Line Lender by crediting wire transfer to the account of such Borrower specified in such notice.
(b) Each of the Company designated Borrowers agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Restatement Effective Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit I-2, with such proceeds.
appropriate insertions (b) The Company hereby agrees that each as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Loan made by Note”), payable to the Swing Line Lender to and representing the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company such Borrower to pay to such Swing Line Lender, at the office amount of the Swing Line Lender listed in Section 14.2Commitment or, in Dollars and in immediately available fundsif less, the aggregate unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line LenderBorrower, with interest thereon as prescribed in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Each Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on the last for more than five Business Day of any calendar week Days, each Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the applicable Swing Line Lender to act on its behalf) ), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)), each Multi-Currency Lender Tranche A Lender, including the Swing Line Lender, to make a Tranche A Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Tranche A Lender’s Tranche A Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection 2.4(c) shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Tranche A Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Tranche A Lender shall hereby agrees to make the proceeds of its Tranche A Revolving Credit Loan (including any EurocurrencyTerm SOFR Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City AmericasActive:15540830.1218080089.6 time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Tranche A Commitment of such, or any other, Tranche A Lender at such time. The proceeds of such Tranche A Revolving Credit Loans (including, any EurocurrencyTerm SOFR Loan and any BA Equivalent Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Tranche A Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Tranche A Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (A) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Tranche A Commitments, prior to the making of make a Tranche A Revolving Credit Loan pursuant to paragraph as an ABR Loan (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which Tranche A Revolving Credit Loan was to have been made, shall be deemed a “Tranche A Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (B) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Tranche A Lender’s Tranche A Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Tranche A Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Tranche A Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Tranche A Lenders to share in such Swing Line Loans ratably based upon their respective Tranche A Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Tranche A Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Tranche A Revolving Credit Loans made as ABR Loans. In the event that the Tranche A Commitments shall expire or terminate in part (and not in full) at any time while Swing Line Loans are outstanding, the applicable Borrower shall repay Swing Line Loans in the amount by which the outstanding Swing Line Loans exceed the continuing Tranche A Commitments; and in the event that such Borrower fails to do so, the obligations of each Tranche A Lender pursuant to the prior sentence shall apply with respect to such Lender’s Tranche A Commitment Percentage (calculated immediately prior to such expiration or termination) of the amount by which the outstanding Swing Line Loans in excess of the continuing Tranche A Commitments not so repaid. Each Multi-Currency Tranche A Lender will make the proceeds of any Tranche A Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Tranche A Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such Tranche A Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Tranche A Commitments. In the event that the Tranche A Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Tranche A Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will execute and deliver to such Tranche A Lender a certificate substantially in the form of Exhibit H with appropriate insertions AmericasActive:15540830.1218080089.6 as required by such certificate dated the date of receipt of such funds and in such amount (each such certificate, as amended, supplemented, replaced or otherwise modified from time to time, a “Swing Line Loan Participation Certificate”).
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Tranche A Lender such Multi-Currency Tranche A Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Tranche A Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Tranche A Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Tranche A Lender’s obligation to make the Tranche A Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Tranche A Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Tranche A Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Tranche A Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Abl Credit Agreement (Veritiv Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”"SWING LINE LOAN"; collectively, the “Swing Line Loans”"SWING LINE LOANS") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided3,000,000, however, PROVIDED that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Credit Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityCommitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.3:00 p.m., New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent an amount equal to $250,000 or any Multi-Currency Lender that one or more a whole multiple of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Dollars.
(b) The Borrower agrees that, upon the request to the Agent by the Swing Line Lender made on or prior to the Closing Date or in Dollars connection with any assignment pursuant to subsection 11.6, to evidence the Swing Line Loans the Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-3, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate "SWING LINE NOTE"), payable to the order of the Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by such to the Borrower, with interest thereon as prescribed in subsection 4.6. The Swing Line Lender pursuant Note shall (a) be dated the Closing Date, (b) be stated to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, mature on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) Date and (iic) provide for the date and amount payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.6.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Lender’s 's Commitment Percentage of the principal amount of all of the Swing Line Loans (the “Refunded Swing Line Loans”"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given; PROVIDED that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.3. Unless the Commitments shall have expired or terminated for any reason, including but not limited to, the occurrence of any of the events described in paragraph (jf) of Section 12.1 shall have occurred 9 hereto with respect to the Borrower (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Revolving Credit Commitments shall expire or terminate (for any reason, prior including but not limited to the making occurrence of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one any of the events described in paragraph (jf) of Section 12.1 shall have occurred9 hereto with respect to the Borrower) at any time while Swing Line Loans are outstanding, each Multi-Currency Lender willshall, on at the date such option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan was to have been made, as an ABR Loan (which Revolving Credit Loan shall be deemed a "Revolving Credit Loan" for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such ▇▇▇▇▇▇'s Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Agent for the account of the Swing Line Lender at the office of the Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, and the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); providedPROVIDED, howeverHOWEVER, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required it.
(f) Notwithstanding anything herein to be returned by the contrary, the Swing Line LenderLender shall not be obligated to make any Swing Line Loan if the conditions set forth in subsection 6.2 have not been satisfied.
Appears in 1 contract
Sources: Revolving Credit Agreement (Aftermarket Technology Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender JPMorgan Chase Bank agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") available to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided5,000,000, howeverprovided that JPMorgan Chase Bank shall have no obligation to and shall not issue any Swing Line Loan if, that at no time (after giving effect to such issuance, the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Available Revolving Credit exceed the Maximum AvailabilityCommitment with respect to any Lender would be less than zero. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each borrowing of Swing Line Lender irrevocable notice, which notice Loans shall be in substantially the form an amount equal to $100,000 or a whole multiple of Exhibit H-3 $100,000 in excess thereof. The Borrower shall give JPMorgan Chase Bank irrevocable notice (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender JPMorgan Chase Bank prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender JPMorgan Chase Bank to the Company Borrower at the office of JPMorgan Chase Bank specified in subsection 10.2 by crediting the account of the Company designated to the Swing Line Lender Borrower at such office with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, JPMorgan Chase Bank at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs the Swing Line Lender JPMorgan Chase Bank to act on its behalf) request prior to 12:00 Noon (New York City time) each Multi-Currency Lender Lender, including JPMorgan Chase Bank, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment 's Revolving Credit Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.5 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to JPMorgan Chase Bank for the Swing Line Lender for its own account of JPMorgan Chase Bank at the office of JPMorgan Chase Bank specified for the Swing Line Lender in Section 14.2 subsection 10.2 prior to 1:00 2:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Each Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this subsection 2.5(b) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be an ABR Loan.
(dc) If, If prior to the making of a Revolving Credit Loan pursuant to paragraph (cb) of Section 4.1, this subsection 2.5 one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Lender will, will on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Revolving Credit Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line LenderJPMorgan Chase Bank, in immediately available funds, the amount of its participationparticipation and upon receipt thereof JPMorgan Chase Bank will deliver to such Lender a Swing Line Loan participation certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender JPMorgan Chase Bank has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender JPMorgan Chase Bank receives any payment on account thereof, the Swing Line Lender JPMorgan Chase Bank will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender JPMorgan Chase Bank is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender JPMorgan Chase Bank any portion thereof previously distributed by JPMorgan Chase Bank to it.
(e) Each Lender's obligation to purchase participating interests pursuant to this subsection 2.5 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 Swing Line Lender to it Borrower may have against JPMorgan Chase Bank, the Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any adverse change in like funds as such payment is required to be returned the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement by the Swing Line Borrower 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to each of the Company in Dollars under the Aggregate Commitment Borrowers from time to time during the Revolving Credit Commitment Period in an aggregate principal amount as to all of the Borrowers at any one time outstanding not to exceed $30,000,000; provided10,000,000, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan and Loans, Revolving Credit Loans (including, without limitation, in the use case of Revolving Credit Loans then outstanding in any Designated Foreign Currency, the Dollar Equivalent of the proceeds aggregate principal amount thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit and L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by any of the Company Borrowers under this Section 4.1 subsection 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Parent Borrower (on behalf of itself or such other Borrower, as the case may be) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying (i) the identity of the Borrower and (ii) the amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each of the Borrowers agrees that, in Dollars and in immediately available funds, upon the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant request to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made Administrative Agent by the Company to such Swing Line Lender, in order to evidence the books Swing Line Loans such Borrower will execute and records deliver to the Swing Line Lender a promissory note substantially in the form of such Exhibit A-4, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer representing the obligation of such Borrower to pay the amount of the Swing Line LenderCommitment or, setting forth in reasonable detail if less, the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence unpaid principal amount of the accuracy Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (a) be dated the Effective Date, (b) be stated to mature on the Termination Date and (c) provide for the payment of the information so recorded; provided, however, that the failure to make any such recording or any error interest in such recording shall not in any way affect the Payment Obligations of the Company hereunderaccordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which such Swing Line Loan shall have been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Revolving Credit Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Revolving Credit Lender’s 's Revolving Credit Commitment Percentage of the principal amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless ; provided that the provisions of this subsection shall not affect the obligations of any of the events described Borrowers to prepay Swing Line Loans in paragraph (j) accordance with the provisions of Section 12.1 subsection 4.4(e). Unless the Revolving Credit Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.5 shall apply) ), each Multi-Currency Revolving Credit Lender shall will make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Revolving Credit Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Revolving Credit Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan pursuant to paragraph as an ABR Loan or (cii) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Credit Lender's Revolving Credit Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Revolving Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Revolving Credit Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Revolving Credit Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Sources: Credit Agreement (Relocation Management Systems Inc)
Swing Line Commitments. (ai) Subject to the terms and conditions ---------------------- hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower from --------------- ---------------- time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided10,000,000, however, provided that at no time (after giving effect to may -------- the making of such Swing Line Loan and the use sum of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit then outstanding Loans and L/C Obligations exceed the Maximum Availabilitylesser of (x) the Commitments and (y) the Borrowing Base then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.10 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Dollars.
(ii) Provided that the conditions precedent contained in subsection 6.2 to its obligation to make a Swing Line Loan have been satisfied and that there is sufficient availability under the Swing Line Commitment, in Dollars and in immediately available fundson each Interest Payment Date, the aggregate Swing Line Lender shall, on behalf of the Borrower (which hereby irrevocably authorizes and directs the Swing Line Lender to act on its behalf), make a Swing Line Loan to the Borrower in an amount equal to the amount of interest due and payable on such Interest Payment Date pursuant to subsection 4.1. The proceeds of such Swing Line Loan shall be made available by the Swing Line Lender to the Administrative Agent and applied by the Administrative Agent to the payment of such interest on such Interest Payment Date; the Swing Line Lender shall notify the Borrower as soon as reasonably practicable of the amount of each such Swing Line Loan.
(b) The Swing Line Loans shall be evidenced by a promissory note of the Borrower substantially in the form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line --------------- Lender and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a)Loans, which amounts shall be due and payable (whether at maturity or by acceleration) with interest thereon as set forth prescribed in this Agreement and, in any event, on the Multi-Currency Termination Datesubsection 4.1. The Company hereby agrees that the Swing Line Lender is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lenderthereof, in the on its internal books and records and/or on the schedule annexed to and constituting a part of such the Swing Line Lender Note and in any such manner as is reasonable and customary for it and a certificate of an officer of recordation on such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, schedule shall constitute prima facie evidence of the ----- ----- accuracy of the information so recorded; provided, however, provided that the failure by the -------- Swing Line Lender to make any such recording recordation or any error in any such recording recordation shall not in any way affect the Payment Obligations obligations of the Company hereunderBorrower under this Agreement or the Swing Line Note. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Termination Date and (c) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of when Swing Line Loans are outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Commitment Percentage of the principal amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such ------------------------- notice is given; provided that the provisions of this subsection shall not -------- affect the Borrower's obligations to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.10 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its the Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Commitments, make a Revolving Credit Loan pursuant to paragraph or (cii) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender's Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Lender will make the proceeds of any Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to any such Lender that so requests a confirmation of such Lender's undivided participating interest in the Swing Line Loans dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the -------- ------- Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Sources: Credit Agreement (CDW Holding Corp)
Swing Line Commitments. (a) Subject to upon by the terms Borrower or applicable Subsidiary Borrower and conditions hereofthe relevant Swing Line Lender. In giving irrevocable notice, the Borrower or the applicable Subsidiary Borrower shall designate, at its option, one or two Swing Line Lenders to make one or more Swing Line Loans in the relevant currency. Upon such notice, the Administrative Agent shall promptly notify each applicable Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each Swing Line Lender which has been designated by the Borrower or the applicable Subsidiary Borrower in its irrevocable notice, which notice shall be make the amount of its pro rata share of each borrowing in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received currency requested available to the Borrower or applicable Subsidiary Borrower in the manner directed by the Swing Line Lender prior to 1:00 P.M., New York City time Administrative Agent on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsBorrowing Date.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording Lenders or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, them at any time and in their or its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower or applicable Subsidiary Borrower (which hereby irrevocably directs the Swing Line Lender Lenders to act on its behalf) ), request each Multi-Currency Revolving Credit Lender that is an Eligible U.K. Bank, Eligible Canadian Bank, Eligible Dutch Bank, Eligible Belgian Bank or Eligible Australian Bank, with respect to Swing Line Loans made to Subsidiary Borrowers which are resident for taxation purposes in the United Kingdom, Canada, the Netherlands, Belgium or Australia, respectively, or each Revolving Credit Lender, including each Swing Line Lender, with respect to all other Swing Line Loans, to make a Revolving Credit Loan (as an Alternate Base Rate Loanin the currency of the Swing Line Loan(s) in made by such Swing Line Lender(s) an amount equal to such Multi-Currency Lender’s Commitment 's Revolving Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.6 shall apply) ), each Multi-Currency Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender for its own account Lenders, at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. 12:00 Noon (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the any Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the and such Swing Line Lender receives any payment on account thereof, the such Swing Line Lender will distribute to such Multi-Currency Revolving Credit Lender through the Administrative Agent its participating interest in such Dollar Equivalent amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s 's participating interest was outstanding and funded) in like funds as receiveddenominated in Dollars; provided, however, that in the event that such payment received by the such Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the such Swing Line Lender through the Administrative Agent any portion thereof previously distributed by the such Swing Line Lender to it in like funds as such payment is required to be returned by the such Swing Line Lender.
Appears in 1 contract
Sources: Credit Agreement (Scotts Company)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period (i) to any U.S. Borrower in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time 75,000,000 and (after giving effect ii) to the making Canadian Borrower in an aggregate principal amount at any one time outstanding not to exceed the Dollar Equivalent of such $15,000,000; provided that the Swing Line Loan and the use of the proceeds thereof) may Lender shall not make any Swing Line Loans if, after doing so, the Aggregate Outstanding Multi-Currency Extensions of Credit Tranche A Lender Exposure would exceed the Maximum AvailabilityAggregate Tranche A Commitment or the Aggregate Tranche A Credit Extensions would exceed the applicable limitation set forth in subsection 2.1(a)(i)(B) and, with respect to the Canadian Borrower, subsection 2.1(a)(ii). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans (x) made to any U.S. Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and (y) made to the Canadian Borrower shall be made in Canadian Dollars or in Dollars as ABR Loans. Swing Line Loans shall not be entitled to be converted into Eurodollar Eurocurrency Loans or BA Equivalent Loans. The Company In the case of Swing Line Loans, the Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to (x) in the case of Swing Line Loans made to any U.S. Borrower, 2:00 P.M., New York City time and (y) in the case of Swing Line Loans made to the Canadian Borrower, 1:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The , which shall be in a minimum amount of $100,000.00 or whole multiples of $50,000.00 in excess thereof (or, in the case of Swing Line Lender shall not make any Swing Line Loan Loans denominated in Canadian Dollars, a minimum amount of Cdn$100,000.00 or whole multiples of Cdn$50,000.00 in excess thereof). In each case, the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more proceeds of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the applicable Swing Line Lender to the Company Borrower identified in such notice at an office of the applicable Swing Line Lender by crediting wire transfer to the account of such Borrower specified in such notice.
(b) Each of the Company designated Borrowers agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Restatement Effective Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit I-2, with such proceeds.
appropriate insertions (b) The Company hereby agrees that each as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Loan made by Note”), payable to the Swing Line Lender to and representing the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company such Borrower to pay to such Swing Line Lender, at the office amount of the Swing Line Lender listed in Section 14.2Commitment or, in Dollars and in immediately available fundsif less, the aggregate unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line LenderBorrower, with interest thereon as prescribed in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Each Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on the last for more than five Business Day of any calendar week Days, each Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the applicable Swing Line Lender to act on its behalf) ), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)), each Multi-Currency Lender Tranche A Lender, including the Swing Line Lender, to make a Tranche A Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Tranche A Lender’s Tranche A Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection 2.4(c) shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Tranche A Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Tranche A Lender shall hereby agrees to make the proceeds of its Tranche A Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Tranche A Commitment of such, or any other, Tranche A Lender at such time. The proceeds of such Tranche A Revolving Credit Loans (including, any Eurocurrency Loan and any BA Equivalent Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Tranche A Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Tranche A Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (A) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Tranche A Commitments, prior to the making of make a Tranche A Revolving Credit Loan pursuant to paragraph as an ABR Loan (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which Tranche A Revolving Credit Loan was to have been made, shall be deemed a “Tranche A Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (B) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Tranche A Lender’s Tranche A Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Tranche A Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Tranche A Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Tranche A Lenders to share in such Swing Line Loans ratably based upon their respective Tranche A Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Tranche A Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Tranche A Revolving Credit Loans made as ABR Loans. In the event that the Tranche A Commitments shall expire or terminate in part (and not in full) at any time while Swing Line Loans are outstanding, the applicable Borrower shall repay Swing Line Loans in the amount by which the outstanding Swing Line Loans exceed the continuing Tranche A Commitments; and in the event that such Borrower fails to do so, the obligations of each Tranche A Lender pursuant to the prior sentence shall apply with respect to such Lender’s Tranche A Commitment Percentage (calculated immediately prior to such expiration or termination) of the amount by which the outstanding Swing Line Loans in excess of the continuing Tranche A Commitments not so repaid. Each Multi-Currency Tranche A Lender will make the proceeds of any Tranche A Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Tranche A Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such Tranche A Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Tranche A Commitments. In the event that the Tranche A Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Tranche A Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will execute and deliver to such Tranche A Lender a certificate substantially in the form of Exhibit H with appropriate insertions as required by such certificate dated the date of receipt of such funds and in such amount (each such certificate, as amended, supplemented, replaced or otherwise modified from time to time, a “Swing Line Loan Participation Certificate”).
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Tranche A Lender such Multi-Currency Tranche A Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Tranche A Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Tranche A Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Tranche A Lender’s obligation to make the Tranche A Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Tranche A Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Tranche A Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Tranche A Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Abl Credit Agreement (Veritiv Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”"SWING LINE LOAN"; collectively, the “Swing Line Loans”"SWING LINE LOANS") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided10,000,000, however, PROVIDED that at no time (after giving effect to may the making sum of such the then outstanding Revolving Credit Loans, Swing Line Loan Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.19 may be repaid and, up to through but excluding the last day Termination Date, reborrowed. Swing Line Loans may not be prepaid without the consent of the Commitment Period, reborrowedSwing Line Lender. All Swing Line Loans shall be made as Alternate Base Negotiated Rate Loans and shall not be entitled to be converted into Eurodollar Loans or ABR Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Dollars. Each Negotiated Rate Loan shall mature and be payable at the end of the Interest Period applicable thereto.
(b) The Swing Line Loans shall, if requested by the Swing Line Lender, be evidenced by a promissory note of the Borrower substantially in Dollars and in immediately available fundsthe form of Exhibit C, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate "SWING LINE NOTE"), payable to the order of the Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a)Loans, which amounts shall be due and payable with interest thereon as prescribed in subsection 2.19
(whether at maturity or by accelerationa) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lenderthereof, in the on its internal books and records and/or on the schedule annexed to and constituting a part of such the Swing Line Lender Note and in any such manner as is reasonable and customary for it and a certificate of an officer of recordation on such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, schedule shall constitute prima facie PRIMA FACIE evidence of the accuracy of the information so recorded; provided, however, PROVIDED that the failure by the Swing Line Lender to make any such recording recordation or any error in any such recording recordation shall not in any way affect the Payment Obligations obligations of the Company hereunderBorrower under this Agreement or the Swing Line Note. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Termination Date and (c) provide for the payment of interest in accordance with subsection 2.10.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Revolving Credit Commitment Percentage of the principal amount of the Swing Line Loans (the “Refunded Swing Line Loans”"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 Revolving Credit Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.19 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its the Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Revolving Credit Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan pursuant to paragraph or (cii) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender's Revolving Credit Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments) of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Lender will make the proceeds of any Revolving Credit Loan made by it pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph, each Lender shall 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 any such Lender that so requests a confirmation of such Lender's undivided participating interest in the Swing Line Loans dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); providedPROVIDED, howeverHOWEVER, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Sources: Credit Agreement (Recoton Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time time, on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender Bank hereby agrees to make swing line loans to the Company (individually, a “Committed Swing Line Loan”; collectively, collectively the “Committed Swing Line Loans”; or the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender Commitment; provided that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans, together with the aggregate unpaid principal amount of all Revolving Credit Loans, LOC Obligations and all Bid Loans at any one time outstanding, may not exceed the aggregate amount of the Commitments. Amounts borrowed by the Company under this subsection 2.19 may be repaid and, through but excluding the Termination Date, reborrowed. All Committed Swing Line Loans shall be made as ABR Loans and may not be converted into Eurodollar Loans. Each borrowing of Swing Line Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company shall give the Administrative Agent (which shall promptly notify the Swing Line Bank) irrevocable notice (which notice must be received by the Administrative Agent prior to 2:00 P.M., New York City time) on the requested Borrowing Date specifying the amount of the requested Committed Swing Line Loan to be made by the Swing Line Bank. The proceeds of each Committed Swing Line Loan shall be made available by the Swing Line Bank to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified prior to 4:30 p.m. on the requested Borrowing Date.
(b) The Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender Bank to the Company shall be evidenced by a promissory note of the Company substantially in the form of Exhibit I, with appropriate insertions (the “Swing Line Note”), payable to the order of the Swing Line Bank and representing the obligation of the Company to pay the unpaid principal amount of the Swing Line Loans made to the Company, with interest thereon as prescribed in subsection 2.9. The Swing Line Bank is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) the Company and (ii) the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of and interest with respect to each its Swing Line Loan made by the Company to Note (or any continuation thereof) and any such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided. Each Swing Line Note shall (a) be dated the Closing Date, however(b) be stated to mature on the Termination Date and (c) bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderand payable as specified in, subsection 2.9.
(c) The In the event that the Company has not notified the Administrative Agent of its intent to repay the Swing Line LenderLoans made on any Borrowing Date by 12:00 noon New York City time on the Business Day immediately following such Borrowing Date and has not in fact repaid such Swing Line Loans (including accrued interest thereon) in full by such time, at any time in its sole and absolute discretion, may, and (i) at any time as there the Company shall be $25,000,000 deemed to have made an irrevocable request to the Administrative Agent under subsection 2.3 (which for purposes of this subsection shall be deemed to be timely and sufficient) for a borrowing on such date of Revolving Credit Loans that are ABR Loans in an aggregate amount equal to the then unpaid aggregate principal amount of such Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available made to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is givenCompany. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded such Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIn the event that for any reason whatsoever (including, prior without limitation, the occurrence of an event specified in paragraph (g) of subsection 7 with respect to the making of a Revolving Credit Loan pursuant to Company), the procedures set forth in the foregoing paragraph (c) of Section 4.1are not followed, one each Bank shall, upon notice from the Administrative Agent, promptly purchase from the Swing Line Bank participations in (or, if and to the extent specified by the Swing Line Bank, a direct interest in) the Swing Line Loans made by the Swing Line Bank (collectively, the “Unrefunded Swing Line Loans”) in an aggregate amount equal to the amount of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to it would have been made, purchase an undivided participating interest obligated to make pursuant to the procedures set forth in the Refunded Swing Line foregoing paragraph (c).
(e) Each Bank shall, not later than 4:00 P.M. New York City time on the Business Day on which such notice is received (if such notice is received by 2:15 P.M. New York City time) or 9:00 A.M. New York City time on the next succeeding Business Day (if such notice is received after 2:15 P.M. New York City time), make available the amount of the Revolving Credit Loan to be made by it (or the amount of the participations or direct interests to be purchased by it, as the case may be) to the Administrative Agent at the applicable office of the Administrative Agent specified in an subsection 9.2 and the amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer so received by the Administrative Agent shall promptly be made available to the Swing Line LenderBank by remitting the same, in immediately available funds, to the amount Swing Line Bank, in accordance with the provisions of its participationparagraph (g) below.
(ef) Whenever, at any time after the Swing Line Lender Bank has received from any Multi-Currency Lender Bank such Multi-Currency LenderBank’s participating interest in a Refunded an Unrefunded Swing Line Loan pursuant to clause paragraph (d) above, the Swing Line Lender Bank receives any payment on account thereof, the Swing Line Lender Bank will distribute to such Multi-Currency Lender Bank its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency LenderBank’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender Bank is required to be returned, such Multi-Currency Lender Bank will return to the Swing Line Lender Bank any portion thereof previously distributed by the Swing Line Lender Bank to it it.
(g) All payments (including prepayments) to be made by the Company hereunder and under the Swing Line Notes, whether on account of principal, interest, fees or otherwise, shall be made without set off, counterclaim or any other deduction whatsoever and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Swing Line Bank, at the Administrative Agent’s office specified in subsection 9.2, in Dollars and in immediately available funds, and upon receipt by the Administrative Agent of any payment made by the Company in accordance with the terms of this Agreement and the Swing Line Notes, the Company shall have satisfied its payment obligation with respect to the obligation on account of which such payment was made. Any such payment made at or after 1:00 P.M. New York City time, on any day shall be deemed made on the following Business Day. The Administrative Agent shall distribute such payments to the Swing Line Bank promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(h) Anything in this Agreement to the contrary notwithstanding (including, without limitation, in subsection 4.2), the obligation of each Bank to make its Revolving Credit Loan (or purchase its participation or direct interest in such Swing Line Loan, as the case may be) pursuant to this subsection 2.19 is required unconditional under any and all circumstances whatsoever and shall not be subject to be returned by set-off, counterclaim or defense to payment that such Bank may have or have had against the Company, the Administrative Agent, the Swing Line LenderBank or any other Bank and, without limiting any of the foregoing, shall be unconditional irrespective of (i) occurrence of any Default, (ii) the financial condition of the Company, any Affiliate, the Administrative Agent, the Swing Line Bank or any other Bank or (iii) the termination or cancellation of the Commitments. The Company agrees that any Bank so purchasing a participation (or direct interest) in such Swing Line Loan may exercise all rights of set-off, bankers’ lien, counter claim or similar rights with respect to such participation as fully as if such Bank were a direct holder of a Swing Line Loan in the amount of such participation .
(i) Notwithstanding any of the provisions set forth herein, if the Swing Line Bank is notified by the Administrative Agent that an Event of Default has occurred and is continuing, the Swing Line Bank shall not be permitted to make any Swing Line Loans hereunder.
Appears in 1 contract
Sources: Credit Agreement (First Data Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; , and collectively, the “Swing Line Loans”) available to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00025,000,000; providedprovided that, howeverthe Swing Line Lender shall have no obligation to and shall not issue any Swing Line Loan if, that at no time (after giving effect to such issuance, the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Revolving Extensions of Credit of all Lenders would exceed the Maximum AvailabilityRevolving Credit Commitments of all Lenders then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. Each Swing Line Borrowing shall be in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time on the requested borrowing date, Borrowing Date) specifying the Borrowing Date and the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives Each such notice given by means other than written notice from shall be promptly confirmed in writing by the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line LoanBorrower. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company Borrower by crediting the account of the Company designated to the Swing Line Lender Borrower with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request prior to 12:00 Noon that each Multi-Currency Lender to Lender, including the Swing Line Lender, make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Revolving Credit Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 Article 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 2.5 shall apply) ), each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 prior to 1:00 2:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Each Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this Section 2.5(b) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be an ABR Loan.
(dc) If, If prior to the making of a the Revolving Credit Loan Loans pursuant to paragraph (cSection 2.5(b) of Section 4.1, one of the events described in paragraph (jf) of Section 12.1 Article 8 shall have occurred, each Multi-Currency Lender will, will on the date such Revolving Credit Loan was Loans were to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Revolving Credit Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will grant to such Lender a Swing Line Loan participation as of the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed to it.
(e) Each Lender’s obligation to purchase participating interests pursuant to this Section 2.5 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 Swing Line Lender to it in like funds as such payment is required to be returned by Borrower may have against the Swing Line Lender, the Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement by the Borrower 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00050.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Tranche A Loans and L/C Obligations exceed the lesser of the Tranche A Commitments then in effect and the use of Tranche A Borrowing Base as then in effect (based on the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum AvailabilityBorrowing Base Certificate last delivered). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 3:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9.1(f)) request each Multi-Currency Lender Tranche A Lender, including the Swing Line Lender, to make a Revolving Credit Tranche A Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Tranche A Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Lender’s Tranche A Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Tranche A Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Tranche A Lender shall hereby agrees to make the proceeds of its Revolving Credit Tranche A Loan (including, without limitation, any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Tranche A Commitment of such, or any other, Tranche A Lender at such time. The proceeds of such Revolving Credit Tranche A Loans (including, without limitation, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Tranche A Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one expiration or termination of the events described in paragraph Tranche A Commitments, make a Tranche A Loan as an ABR Loan (jwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender’s Tranche A Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Tranche A Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Tranche A Lenders to share in such Swing Line Loans ratably based upon their respective Tranche A Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Tranche A Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Tranche A Loans made as ABR Loans. Each Multi-Currency Tranche A Lender will make the proceeds of any Tranche A Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Tranche A Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Tranche A Commitments. In the event that the Tranche A Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Tranche A Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Tranche A Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Tranche A Lender such Multi-Currency Tranche A Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Tranche A Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Tranche A Lender’s obligation to make the Tranche A Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Tranche A Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Tranche A Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no any time (after not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time. After giving effect to the making all Borrowings of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate and Floor Plan Loans requested on any date, the sum of the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not be entitled to be converted into Eurodollar Loans. The Company shall give exceed the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Total Floor Plan Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsCommitment.
(b) The Company hereby agrees that each All Swing Line Loan made Loans and all Swing Line Overdraft Loans shall be evidenced by the Swing Line Lender Note, under which advances, repayments and readvances may be made, subject to the Company pursuant to terms and conditions of this Section 4.1 Agreement. In no event whatsoever shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each outstanding Swing Line Loan made by such Swing Line Lender pursuant be deemed to Section 4.1(a) and (ii) the date and amount of each payment reduce, modify or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line affect any Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure ’s obligation to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to Immediately upon the making of a Revolving Credit Swing Line Loan pursuant to paragraph (c) of Section 4.1by the Swing Line Bank, one of the events described in paragraph (j) of Section 12.1 Swing Line Bank shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was be deemed to have been madesold and transferred to each Lender and each Lender shall be deemed to have purchased and received from the Swing Line Bank, purchase without any further action by any party, an undivided participating interest in the Refunded each Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as receivedPro Rata Share; provided, however, that (a) no Lender shall be required to fund its participation in the event that such payment received by the any Swing Line Loan except as set forth in Section 4.5, and (b) no Lender is required shall be entitled to share in any payments of principal or interest in respect of its participation except, with respect to any participation funded by such ▇▇▇▇▇▇, as set forth herein. Such participation shall be returned, such Multi-Currency Lender will return subject to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderterms and conditions of this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, JPMorgan Chase Bank, N.A. (in such capacity, the “Swing Line Lender Lender”) agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) in Dollars to the Company in Dollars under the Aggregate Commitment Borrower from time to time on any Business Day during the period from the Availability Date to the Commitment Period Termination Date of the Swing Line Lender in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; providedthe Swing Line Commitment, however, provided that at no time (after giving effect to may the making of such Swing Line Loan and the use aggregate principal amount of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Total Extensions of Credit exceed the Maximum Availabilityaggregate amount of the Commitments. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of During the Commitment Period, reborrowed. All the Borrower may use the Swing Line Commitments by borrowing, prepaying the Swing Line Loans shall in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Swing Line Loans may from time to time be made as Alternate Base (i) ABR Loans, (ii) ASK Rate Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance herewith and shall not be entitled to be converted into Eurodollar Loans or Reference Rate Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which written notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the such Swing Line Lender prior to 1:00 (x) 3:00 P.M., New York City time time, in the case of ABR Loans and (y) 2:00 P.M., New York City time, in the case of ASK Rate Loans), on the requested borrowing date, Borrowing Date specifying the Type and amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each all such Swing Line Loan Loans will then be made available to the Borrower by the Swing Line Lender to the Company by crediting the account of the Company Borrower on the books of the Swing Line Lender, or such other account of the Borrower as shall have been designated by the Borrower to the Swing Line Lender with such proceedsLender.
(bi) The Company Borrower hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company unconditionally promises to pay to such Swing Line Lender, at the office Administrative Agent for the account of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate then unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by on the earlier of (x) the Commitment Termination Date and (y) the 14 Business Day after such Swing Line Lender pursuant to Section 4.1(a) and Loan was made (ii) the or such earlier date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan become due and payable pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.Article
Appears in 1 contract
Sources: Credit Agreement
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00015,000,000; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company any Borrower under this Section 4.1 Subsection 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 2:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent (or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date later time as may be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available agreed by the Swing Line Lender to in its reasonable discretion) on the Company by crediting requested Borrowing Date specifying (1) the account identity of the Company designated to Borrower and (2) the amount of the requested Swing Line Lender with such proceedsLoan, which shall be in a minimum amount of $100,000 or whole multiples of $50,000 in excess thereof.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder[Reserved].
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under Subsection 9.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of Subsection 4.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 Subsection 2.7 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any Eurodollar Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including any Eurodollar Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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 the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with Subsections 2.7(c) and 2.7(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender, (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: First Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no any time (after not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time. After giving effect to the making all Borrowings of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate and Floor Plan Loans requested on any date, the sum of the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not be entitled to be converted into Eurodollar Loans. The Company shall give exceed the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Total Floor Plan Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsCommitment.
(b) The Company hereby agrees that each All Swing Line Loan made Loans and all Swing Line Overdraft Loans shall be evidenced by the Swing Line Lender Note, under which advances, repayments and readvances may be made, subject to the Company pursuant to terms and conditions of this Section 4.1 Agreement. In no event whatsoever shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each outstanding Swing Line Loan made by such Swing Line Lender pursuant be deemed to Section 4.1(a) and (ii) the date and amount of each payment reduce, modify or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line affect any Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure ’s obligation to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to Immediately upon the making of a Revolving Credit Swing Line Loan pursuant to paragraph (c) of Section 4.1by the Swing Line Bank, one of the events described in paragraph (j) of Section 12.1 Swing Line Bank shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was be deemed to have been madesold and transferred to each Lender and each Lender shall be deemed to have purchased and received from the Swing Line Bank, purchase without any further action by any party, an undivided participating interest in the Refunded each Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as receivedPro Rata Share; provided, however, that (a) no Lender shall be required to fund its participation in the event that such payment received by the any Swing Line Loan except as set forth in Section 4.5, and (b) no Lender is required shall be entitled to share in any payments of principal or interest in respect of its participation except, with respect to any participation funded by such Lender, ▇▇ ▇▇▇ forth herein. Such participation shall be returned, such Multi-Currency Lender will return subject to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.terms and conditions of this Agreement
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00025,000,000; provided, however, provided that at no time (after giving effect to may the making sum of such the Dollar Equivalent of the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 Subsection 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Daily Simple SOFR Rate Loans or Term SOFR Rate Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 2:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent (or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date later time as may be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available agreed by the Swing Line Lender to in its reasonable discretion), on the Company by crediting requested Borrowing Date specifying the account amount of the Company designated to the requested Swing Line Lender with such proceedsLoan, which shall be in a minimum amount of $100,000 or whole multiples of $50,000 in excess thereof.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder[Reserved].
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under Subsection 9.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this Subsection 2.7 shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of Subsection 4.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 Subsection 2.7 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any Eurodollar Daily Simple SOFR Rate Loan or Term SOFR Rate Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including any Eurodollar Daily Simple SOFR Rate Loan or Term SOFR Rate Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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 the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with Subsections 2.7(c) and 2.7(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender, (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000170.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and L/C Obligations exceed the lesser of the Commitments then in effect and the use of Borrowing Base as then in effect (based on the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum AvailabilityBorrowing Base Certificate last delivered). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Term SOFR Loans. The Company Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.3:00 p.m., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Amendment No. 3 Effective Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated as of the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Amendment No. 3 Effective Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9.1(f)) request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (12:00 p.m., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender’s Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Lenders to share in such Swing Line Loans ratably based upon their respective Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 p.m., New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated as of the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 p.m., New York City time, on a Business Day, distribute to such Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency LenderL▇▇▇▇▇’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Lender’s obligation to make Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the each Swing Line Lender severally agrees to make swing line loans short-term funding loans, which may be 46 40 designated in the Borrowing Notice in the form of Exhibit F-1 in respect thereof as (individuallyi) based on the Tranche A Borrowing Base of the applicable Borrower ("TRANCHE A SWING LINE LOANS"), a “(ii) based on the Servicing Advance Portion of the applicable Borrower's Tranche B Borrowing Base ("TRANCHE B SWING LINE ADVANCE LOANS"), and/or (iii) based on the Servicing Portfolio Portion of the applicable Borrower's Tranche B Borrowing Base ("TRANCHE B SWING LINE PORTFOLIO LOANS"; together with the Tranche B Swing Line Loan”; collectivelyAdvance Loans, the “Swing Line Loans”) "TRANCHE B SWING LINE LOANS"), to the Company in Dollars under the Aggregate Commitment each Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000such Swing Line Lender's Swing Line Commitment; provided, howeverPROVIDED, that at no time (Swing Line Loans may be made if, after giving effect to thereto, (A) the making aggregate outstanding Principal Amount of all Loans would exceed the Tranche A Commitment Amount plus the Tranche B Commitment Amount, (B) the aggregate outstanding Principal Amount of Swing Line Loans of any Swing Line Lender would exceed such Swing Line Loan Lender's Swing Line Commitment, (C) the aggregate outstanding principal amount of all Tranche B Loans, Tranche B CAF Advances and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Tranche B Swing Line Loans shall be would exceed the Tranche B Commitment Amount, (D) the aggregate outstanding Principal Amount of all Tranche A Loans, Tranche A CAF Advances and Tranche A Swing Line Loans made as Alternate Base Rate to HomeSide would exceed the HomeSide Tranche A Borrowing Base, (E) the aggregate outstanding Principal Amount of all Tranche A Loans, Tranche A CAF Advances and Tranche A Swing Line Loans made to HonoMo would exceed the HonoMo Tranche A Borrowing Base, (F) the aggregate outstanding Principal Amount of all Tranche B Advance Loans, Tranche B CAF Advances and Tranche B Swing Line Advance Loans made to HomeSide would exceed the Servicing Advance Portion of the HomeSide Tranche B Borrowing Base, (G) the aggregate outstanding Principal Amount of all Tranche B Advance Loans, Tranche B CAF Advances and Tranche B Swing Line Advance Loans made to HonoMo would exceed the Servicing Advance Portion of the HonoMo Tranche B Borrowing Base, (H) the aggregate outstanding Principal Amount of all Tranche B Portfolio Loans and shall not be entitled Tranche B Swing Line Portfolio Loans made to be converted into Eurodollar HomeSide would exceed the Servicing Portfolio Portion of the HomeSide Tranche B Borrowing Base, (I) the aggregate outstanding Principal Amount of all Tranche B Portfolio Loans and Tranche B Swing Line Portfolio Loans made to HonoMo would exceed the Servicing Portfolio Portion of the HonoMo Tranche B Borrowing Base, (J) the aggregate outstanding Principal Amount of all Tranche A Loans. The Company , Tranche A CAF Advances and Tranche A Swing Line Loans made to HonoMo would exceed the HonoMo Tranche A Sublimit or (K) the aggregate outstanding Principal Amount of all Tranche B Loans, Tranche B CAF Advances and Tranche B Swing Line Loans made to HonoMo would exceed the HonoMo Tranche B Sublimit.
(b) Each Borrower may borrow under the Swing Line Commitments during the Commitment Period on any Business Day, PROVIDED that HomeSide, for itself or on behalf of HonoMo, shall give the Swing Line Lender Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Administrative Agent prior to 1:00 2:00 P.M., New York City time time, on the requested borrowing dateBorrowing Date, specifying the amount of each requested to be borrowed. Each borrowing under the Swing Line LoanCommitments, or in the event HomeSide and HonoMo make a borrowing of Swing Line Loans on the same day, the combined amount of such Swing Line Loans, shall be in an amount equal to $2,500,000 or a whole multiple of $1,000,000 in excess thereof. The Each such notice shall be in writing or by fax in the form of Exhibit F-1 and shall include the information required as set forth therein, including the information to be provided by the Collateral Agent as set forth 47 41 therein. During the Commitment Period each Borrower may use the Swing Line Commitments by borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Upon receipt of any such notice from HomeSide, the Administrative Agent shall promptly notify each Swing Line Lender shall not make any thereof. Each Swing Line Loan in Lender will make the period commencing on the first Business Day after it receives written notice from amount of its pro rata share of each borrowing available to the Administrative Agent or any Multi-Currency Lender that one or more for the account of the conditions precedent contained applicable Borrower at the Payment Office prior to 3:00 p.m., New York City time, on the Borrowing Date requested by HomeSide in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfiedfunds immediately available to the Administrative Agent. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan Such borrowing will then be made available to the applicable Borrower by the Administrative Agent at the Payment Office by crediting the applicable Funding Account with the aggregate of the amounts made available to the Administrative Agent by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made Lenders and in like funds as received by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderAdministrative Agent.
(c) The Swing Line Lender, Administrative Agent may at any time in its sole and absolute discretion, mayand, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of with respect to each Swing Line Loans outstanding or (ii) Loan which has not been repaid by the applicable Borrower in immediately available funds prior to 10:30 A.M., New York City time, on the last Thursday (or if such day is not a Business Day, the Business Day of any calendar week first preceding such day) first occurring after the Borrowing Date with respect to such Swing Line Loan shall, on behalf of the Company such Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request prior to 12:00 Noon, New York City time, each Multi-Currency Lender on such Thursday (or such next preceding Business Day) after the Borrowing Date with respect to such Swing Line Loan (i) to make a Revolving Credit Tranche A Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s 's Tranche A Commitment Percentage of the amount of the each such Swing Line Loans (the “Refunded Loan that is a Tranche A Swing Line Loans”Loan and (ii) outstanding on to make a Tranche B Loan in an amount equal to such Lender's Tranche B Commitment Percentage of the date amount of each such notice Swing Line Loan that is givena Tranche B Swing Line Loan (collectively, the "MATURING SWING LINE LOANS"). Unless any of the events described in paragraph (jf) of Section 12.1 9 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.9 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Tranche A Loan or Tranche B Loan, as the case may be, available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 Lenders at the Payment Office prior to 1:00 P.M. (2:00 P.M., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Tranche A Loans or Tranche B Loans, as the case may be, shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Maturing Swing Line Loan. Each Tranche A Loan or Tranche B Loan made pursuant to this subsection 2.9(c) shall be an ABR Loan. Such Tranche B Loans shall be Tranche B Advance Loans or Tranche B Portfolio Loans, as the case may be, as determined by such type of the applicable Swing Line Loans refunded thereby.
(d) If, If prior to the making of a Revolving Credit Tranche A Loan or a Tranche B Loan pursuant to paragraph (c) of Section 4.1, this subsection 2.9 one of the events described in paragraph (jf) of Section 12.1 9 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Tranche A Loan or Tranche B Loan was to have been made, purchase an undivided participating interest in the Refunded Maturing Swing Line Loan that was to have been refunded with the proceeds of such Tranche A Loan or such Tranche B Loan, as the case may be, in an amount equal to its Tranche A Commitment Percentage of such Refunded Maturing Swing Line Loan, in the case of such 48 42 Tranche A Loan, or in an amount equal to its Tranche B Commitment Percentage of such Maturing Swing Line Loan, in the case of such Tranche B Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line LenderAdministrative Agent, in immediately available funds, the amount of its participationparticipation and upon receipt thereof (i) the Administrative Agent will make such funds available to each Swing Line Lender based pro rata on their respective portion of such Swing Line Loan and (ii) each such Swing Line Lender will deliver to the Administrative Agent, and the Administrative Agent will in turn promptly deliver to each 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 the Swing Line Lender Administrative Agent has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Maturing Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender Administrative Agent receives any payment on account thereof, the Swing Line Lender Administrative Agent will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); providedPROVIDED, howeverHOWEVER, that in the event that such payment received by the Swing Line Lender Administrative Agent is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender Administrative Agent any portion thereof previously distributed by the Swing Line Administrative Agent to it.
(f) Each Lender's obligation to purchase participating interests pursuant to this subsection 2.9 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 to it in like funds as such payment is required to be returned by or either Borrower may have against the Administrative Agent or any Swing Line Lender, either Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any adverse change in the financial condition of either Borrower; (iv) any breach of this Agreement by any Loan Party 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Dollar Swing Line Lender agrees to make swing line loans denominated in Dollars (individually, a “Swing Line Loan”; collectively, the “"Dollar Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding, when added to the Dollar Equivalent Amount of then outstanding Foreign Currency Swing Line Loans provided for (and as calculated in) subsection 2.6(b), not to exceed $30,000,000; providedthe Dollar Swing Line Commitment, howeverprovided that no Dollar Swing Line Loan shall be required to be made hereunder unless, that at no time (after giving effect to thereto, (i) the making Available Revolving Credit Commitment of such Swing Line Loan each Revolving Credit Lender would not be less than zero and (ii) the use Aggregate Revolving Credit Outstandings would not exceed the aggregate amount of the proceeds thereof) may Revolving Credit Commitments of all the Aggregate Outstanding Multi-Currency Extensions of Revolving Credit exceed the Maximum AvailabilityLenders. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.6(a) may be repaid and, up to through but excluding the last day of the Revolving Credit Commitment PeriodTermination Date, reborrowed. All Dollar Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower shall give the Dollar Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Dollar Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Dollar Swing Line Loan which shall be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent an amount equal to $500,000 or any Multi-Currency Lender that one or more a whole multiple of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each Dollar Swing Line Loan will be made available on the date requested by the Dollar Swing Line Lender to the Company Borrower by crediting the account of the Company designated Borrower as specified in writing by the Borrower to the Swing Line Lender Administrative Agent with such proceedsproceeds in Dollars.
(b) The Company hereby agrees that each Borrower may, subject to the terms and conditions of this Agreement, borrow swing line loans denominated in Available Foreign Currencies ("Foreign Currency Swing Line Loan made Loans") from any Foreign Currency Swing Line Lender from time to time during the Revolving Credit Commitment Period upon the extension of a Foreign Currency Swing Line Commitment (as hereafter defined) on such terms and conditions as may be agreed to by the Borrower and such Foreign Currency Swing Line Lender, including, but not limited to, the applicable Available Foreign Currency, the procedures for the Foreign Currency Swing Line Lender to make the Company pursuant proceeds of such Foreign Currency Swing Line Loans available to this Section 4.1 shall constitute the promise and obligation Borrower (including, without limitation, the lending installation from which such Foreign Currency Swing Line Loan is to be made), the applicable interest rate, the manner of calculation of the Company applicable interest rate, the maximum aggregate principal Dollar Equivalent Amount of Foreign Currency Swing Line Loans that such Foreign Currency Swing Line Lender shall commit to pay lend to the Borrower in such Available Foreign Currency (such amount, a "Foreign Currency Swing Line Commitment") and the duration of such Foreign Currency Swing Line Commitment, provided that such terms and conditions shall not be inconsistent with the limitations on Foreign Currency Swing Line Commitments and Foreign Currency Swing Line Loans set forth in this subsection and elsewhere in this Agreement. No loan made under a Foreign Currency Swing Line Commitment shall be treated as a Foreign Currency Swing Line Loan for purposes of this Agreement and the other Loan Documents, including, but not limited to, for the purposes of entitling such loans to the benefits of subsection 2.6(e), unless and until the Borrower and the applicable Foreign Currency Swing Line Lender shall have informed the Administrative Agent in writing of the Dollar Equivalent Amount of the Foreign Currency Swing Line Commitment of such Foreign Currency Swing Line Lender and all other terms and conditions thereof. At any time, and from time to time thereafter, subject to the terms and conditions of this Agreement, the Borrower may borrow Foreign Currency Swing Line Loans from such Foreign Currency Swing Line Lender in an amount equal to the then unused amount of the Foreign Currency Swing Line Commitment of such Foreign Currency Swing Line Lender. Anything in this Agreement to the contrary notwithstanding, at the office in any determination of the aggregate amount of outstanding Foreign Currency Swing Line Loans at any time for all purposes of this Agreement and the other Loan Documents (excluding any determinations of the unused amount of any Foreign Currency Swing Line Commitment for purposes of the preceding sentence), the full Dollar Equivalent Amount (calculated in each case on the date such Foreign Currency Swing Line Commitment is originally extended) of each Foreign Currency Swing Line Commitment of each Foreign Currency Swing Line Lender listed in Section 14.2(other than CIBC) shall be deemed to be outstanding as Foreign Currency Swing Line Loans, in Dollars whether borrowed or not borrowed, and in immediately available funds, only the aggregate unpaid principal amount Dollar Equivalent Amount of all the then outstanding Foreign Currency Swing Line Loans made by CIBC shall be included in such determination; provided, further, that at no time shall any Foreign Currency Swing Line Loan Commitment be extended, or Foreign Currency Swing Line Loan be made, by a Foreign Currency Swing Line Lender pursuant to Section 4.1(a)or accepted by the Borrower if, which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement andafter giving effect thereto, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount aggregate Dollar Equivalent Amount (calculated, in the case of each Foreign Currency Swing Line Loan made by Commitment, on the date such Foreign Swing Line Lender pursuant to Section 4.1(aCommitment is originally extended) of the Foreign Currency Swing Line Loans and of the Foreign Currency Swing Line Commitments (as the case may be as provided for above) of all the Foreign Currency Swing Line Lenders exceed the Foreign Currency Swing Line Subfacility or (ii) the date and sum of (A) the aggregate principal amount of each payment or prepayment of principal of and interest with respect to each the Dollar Swing Line Loan made by the Company to such Swing Line LenderLoans and (B) aggregate Dollar Equivalent Amount (calculated, in the books and records case of such each Foreign Currency Swing Line Lender and in Commitment, on the date such manner as is reasonable and customary for it and a certificate of an officer of such Foreign Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence Commitment is originally extended) of the accuracy of Foreign Currency Swing Line Loans and the information so recorded; Foreign Currency Swing Line Commitments (as the case may be as provided for above) exceed the Swing Line Commitment and provided, further, however, that at no time shall any Foreign Currency Swing Line Loan Commitment be extended, or Foreign Currency Swing Line Loan be made, by a Foreign Currency Swing Line Lender or accepted by the failure to make any such recording Borrower if, after giving effect thereto, (I) the Available Revolving Credit Commitment of a Revolving Credit Lender would be less than zero or any error in such recording shall not in any way affect (II) the Payment Obligations Aggregate Revolving Credit Outstandings would exceed the aggregate amount of the Company hereunderRevolving Credit Commitments of all the Revolving Credit Lenders.
(c) The Borrower agrees that, upon the request to the Administrative Agent by the Dollar Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6, to evidence the Dollar Swing Line Loans the Borrower will execute and deliver to the Dollar Swing Line Lender a promissory note substantially in the form of Exhibit A-6, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Dollar Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Dollar Swing Line Commitment or, if less, the unpaid principal amount of the Dollar Swing Line Loans made to the Borrower by the Dollar Swing Line Lender, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Revolving Credit Commitment Termination Date and (c) provide for the payment of interest in accordance with subsection 4.1.
(i) The Dollar Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Dollar Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Dollar Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Dollar Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Revolving Credit Lender, including the Swing Line Lenders, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) ABR Loan in Dollars in an amount equal to such Multi-Currency Revolving Credit Lender’s 's Revolving Credit Commitment Percentage of the principal amount of all of the Dollar Swing Line Loans (the “"Refunded Dollar Swing Line Loans”") outstanding on the date such notice is given. Unless any ; provided that the provisions of this subsection shall not affect the obligations of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available Borrower to the prepay Dollar Swing Line Lender for its own account at Loans in accordance with the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds provisions of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loansubsection 4.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00050.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Tranche A Loans and L/C Obligations exceed the lesser of the Tranche A Commitments then in effect and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum AvailabilityTranche A Borrowing Base. Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 4:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Lender Tranche A Lender, including the Swing Line Lender, to make a Revolving Credit Tranche A Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Tranche A Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Lender’s Tranche A Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Tranche A Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Tranche A Lender shall hereby agrees to make the proceeds of its Revolving Credit Tranche A Loan (including, without limitation, any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Tranche A Commitment of such, or any other, Tranche A Lender at such time. The proceeds of such Revolving Credit Tranche A Loans (including, without limitation, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Tranche A Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one expiration or termination of the events described in paragraph Tranche A Commitments, make a Tranche A Loan as an ABR Loan (jwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender’s Tranche A Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Tranche A Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Tranche A Lenders to share in such Swing Line Loans ratably based upon their respective Tranche A Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Tranche A Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Tranche A Loans made as ABR Loans. Each Multi-Currency Tranche A Lender will make the proceeds of any Tranche A Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Tranche A Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Tranche A Commitments. In the event that the Tranche A Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Tranche A Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Tranche A Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Tranche A Lender such Multi-Currency Tranche A Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Tranche A Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Tranche A Lender’s obligation to make the Tranche A Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Tranche A Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Tranche A Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender Bank hereby agrees to make swing line loans to the Company (individually, a “Swing Line Loan”; collectively, collectively the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period applicable to the Swing Line Bank in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and Commitment; provided that the use aggregate unpaid principal amount of all Swing Line Loans, together with the Dollar Amount (determined as of the proceeds thereofmost recent Revaluation Date) of the aggregate unpaid principal amount of all Revolving Credit Loans, LOC Obligations and all Bid Loans at any one time outstanding, may the Aggregate Outstanding Multi-Currency Extensions of Credit not exceed the Maximum Availabilityaggregate amount of the Commitments. Amounts borrowed by the Company under this Section 4.1 subsection 2.19 may be repaid and, up to through but excluding the last day of Termination Date applicable to the Commitment PeriodSwing Line Bank, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall may not be entitled to be converted into Eurodollar LIBOR Loans. Each borrowing of Swing Line Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company shall give the Administrative Agent (which shall promptly notify the Swing Line Lender Bank) irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Administrative Agent prior to 1:00 P.M., New York City time 2:00 p.m. on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Loan to be made by the Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line LoanBank. The proceeds of each Swing Line Loan will shall be made available by the Swing Line Lender Bank to the Company by crediting Administrative Agent for the account of the Company designated at the applicable office of the Administrative Agent specified prior to 4:30 p.m. on the requested Borrowing Date. Immediately upon the making of a Swing Line Loan, each Bank shall be deemed to have purchased, and hereby irrevocably and unconditionally agrees to purchase, from the Swing Line Lender with Bank a risk participation in such proceedsSwing Line Loan in an amount equal to the product of such Bank’s Commitment Percentage times the amount of such Swing Line Loan.
(b) The Company hereby agrees that each Swing Line Loan Loans made by the Swing Line Lender Bank to the Company pursuant shall, if requested by the Swing Line Bank, be evidenced by a promissory note of the Company substantially in the form of Exhibit I, with appropriate insertions (the “Swing Line Note”), payable to this Section 4.1 shall constitute the promise order of the Swing Line Bank and representing the obligation of the Company to pay to such Swing Line Lender, at the office unpaid principal amount of the Swing Line Lender listed Loans made to the Company, with interest thereon as prescribed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all subsection 2.9. The Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company Bank is hereby agrees that the Swing Line Lender is authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) the Company and (ii) the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of and interest with respect to each its Swing Line Loan made by the Company to Note (or any continuation thereof) and any such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided, however, provided that the failure to make any such recording or any error in such recording recordation shall not in any way affect the Payment Obligations obligations of the Company hereunderhereunder or under the Swing Line Note. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the Termination Date applicable to the Swing Line Bank and (iii) bear interest for the period from the date thereof to the applicable Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, subsection 2.9.
(c) The In the event that the Company has not notified the Administrative Agent of its intent to repay the Swing Line LenderLoans made on any Borrowing Date by 12:00 noon on the Business Day immediately following such Borrowing Date and has not in fact repaid such Swing Line Loans (including accrued interest thereon) in full by such time, at any time in its sole and absolute discretion, may, and (i) at any time as there the Company shall be $25,000,000 deemed to have made an irrevocable request to the Administrative Agent under subsection 2.3 (which for purposes of this subsection shall be deemed to be timely and sufficient) for a borrowing on such date of Revolving Credit Loans that are Base Rate Loans in an aggregate amount equal to the then unpaid aggregate principal amount of such Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available made to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is givenCompany. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded such Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior In the event that for any reason whatsoever (including the occurrence of an event specified in subsection 7(g) with respect to the making of a Revolving Credit Loan pursuant Company) the procedures set forth in subsection 2.19(c) are not followed, then each Bank shall, upon notice from the Administrative Agent, promptly fund its risk participations in (or, if and to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on extent specified by the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan Bank, a direct interest in) the Swing Line Loans made by the Swing Line Bank (collectively, the “Unrefunded Swing Line Loans”) in an aggregate amount equal to its Commitment Percentage of such Refunded Unrefunded Swing Line Loan. .
(e) Each Multi-Currency Lender will immediately transfer Bank shall, not later than 4:00 p.m. on the Business Day on which such notice is received (if such notice is received by 2:15 p.m.) or 9:00 a.m. on the next succeeding Business Day (if such notice is received after 2:15 p.m.), make available the amount of the Revolving Credit Loan to be made by it (or the amount of the participations or direct interests to be purchased by it, as the case may be) to the Administrative Agent at the applicable office of the Administrative Agent specified in subsection 9.2 and the amount so received by the Administrative Agent shall promptly be made available to the Swing Line LenderBank by remitting the same, in immediately available funds, to the amount Swing Line Bank, in accordance with the provisions of its participationsubsection 2.19(g).
(ef) Whenever, at any time after the Swing Line Lender Bank has received from any Multi-Currency Lender Bank such Multi-Currency LenderBank’s participating interest in a Refunded an Unrefunded Swing Line Loan pursuant to clause (d) abovesubsection 2.19(d), the Swing Line Lender Bank receives any payment on account thereof, the Swing Line Lender Bank will distribute to such Multi-Currency Lender Bank its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency LenderBank’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender Bank is required to be returned, such Multi-Currency Lender Bank will return to the Swing Line Lender Bank any portion thereof previously distributed by the Swing Line Lender Bank to it it.
(g) All payments (including prepayments) to be made by the Company to the Swing Line Bank in its capacity as the Swing Line Bank, whether on account of principal, interest or otherwise, shall be made without set off, counterclaim or any other deduction whatsoever and shall be made prior to 1:00 p.m. on the due date thereof to the Administrative Agent, for the account of the Swing Line Bank, at the Administrative Agent’s office specified in subsection 9.2, in Dollars and in immediately available funds, and upon receipt by the Administrative Agent of any payment made by the Company in accordance with this subsection 2.19, the Company shall have satisfied its payment obligation with respect to the obligation on account of which such payment was made. Any such payment made at or after 1:00 p.m. on any day shall be deemed made on the following Business Day. The Administrative Agent shall distribute such payments to the Swing Line Bank promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(h) Anything in this Agreement to the contrary notwithstanding (including in subsection 4.2), the obligation of each Bank to make a Revolving Credit Loan (or purchase its participation or direct interest in a Swing Line Loan, as the case may be) pursuant to this subsection 2.19 is required unconditional under any and all circumstances whatsoever and shall not be subject to be returned by set-off, counterclaim or defense to payment that such Bank may have or have had against the Company, the Administrative Agent, the Swing Line LenderBank or any other Bank and, without limiting any of the foregoing, shall be unconditional irrespective of (i) the occurrence of any Default or Event of Default, (ii) the financial condition of the Company, any Affiliate, the Administrative Agent, the Swing Line Bank or any other Bank or (iii) the termination or cancellation of the Commitments. The Company agrees that any Bank so purchasing a participation (or direct interest) in such Swing Line Loan may exercise all rights of set-off, bankers’ lien, counter claim or similar rights with respect to such participation as fully as if such Bank were a direct holder of a Swing Line Loan in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Western Union CO)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, JPMorgan Chase Bank, N.A. (in such capacity, the “Swing Line Lender Lender”) agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) in Dollars to the Company in Dollars under the Aggregate Commitment Borrower from time to time on any Business Day during the period from the Closing Date to the Commitment Period Termination Date of the Swing Line Lender in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; providedthe Swing Line Commitment, however, provided that at no time (after giving effect to may the making of such Swing Line Loan and the use aggregate principal amount of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Total Extensions of Credit exceed the Maximum Availabilityaggregate amount of the Commitments. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of During the Commitment Period, reborrowed. All the Borrower may use the Swing Line Commitments by borrowing, prepaying the Swing Line Loans shall in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Swing Line Loans may from time to time be made as Alternate Base (i) ABR Loans, (ii) ASK Rate Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance herewith and shall not be entitled to be converted into Eurodollar Eurocurrency Loans or Reference Rate Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which written notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the such Swing Line Lender prior to 1:00 (x) 3:00 P.M., New York City time time, in the case of ABR Loans and (y) 2:00 P.M., New York City time, in the case of ASK Rate Loans), on the requested borrowing date, Borrowing Date specifying the Type and amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $5,000,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $1,000,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each all such Swing Line Loan Loans will then be made available to the Borrower by the Swing Line Lender to the Company by crediting the account of the Company Borrower on the books of the Swing Line Lender, or such other account of the Borrower as shall have been designated by the Borrower to the Swing Line Lender.
(i) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the Swing Line Lender the then unpaid principal amount of each Swing Line Loan on the Commitment Termination Date (or such earlier date on which the Swing Line Loans become due and payable pursuant to Article 7). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Swing Line Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.9.
(ii) The Swing Line Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that resulting from each Swing Line Loan made by from time to time, including the amounts of principal and interest payable and paid to the Swing Line Lender from time to time under this Agreement.
(iii) The Administrative Agent shall maintain the Company Register pursuant to this Section 4.1 shall constitute 9.6(d), and a subaccount therein for the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record recorded (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) hereunder and the Type thereof, (ii) the date and amount of each payment any principal or prepayment of principal of interest due and interest with respect payable or to each become due and payable from the Borrower to the Swing Line Loan made Lender hereunder and (iii) the amount of any sum received by the Company to such Administrative Agent hereunder from the Borrower for the account of the Swing Line Lender, .
(iv) The entries made in the books Register and records the account of such the Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, maintained pursuant to Section 2.19(b)(ii) shall, in to the absence of manifest errorextent permitted by applicable Law, constitute be prima facie evidence of the accuracy existence and amounts of the information so obligations of the Borrower therein recorded; provided, however, that the failure of the Swing Line Lender or the Administrative Agent to make maintain the Register or any such recording account, or any error in such recording therein, shall not in any way manner affect the Payment Obligations obligation of the Company hereunderBorrower to repay (with applicable interest) the Swing Line Loans made the Borrower by the Swing Line Lender in accordance with the terms of this Agreement.
(v) The Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender, the Borrower will execute and deliver to the Swing Line Lender a promissory note of the Borrower evidencing the Swing Line Loans of the Swing Line Lender, substantially in the form of Exhibit B with appropriate insertions as to date and principal amount (a “Swing Line Note”).
(c) The Swing Line Lender, at any time Lender in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on the last for more than 10 Business Day of any calendar week shallDays, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender (in accordance with the notice provisions under Section 2.3), including the Swing Line Lender, to make a Revolving Credit Loan (as that is a Eurodollar Loan with an Alternate Base Rate Loan) Interest Period of one month in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the principal amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that prior to making any such request to the Lenders to make such a Revolving Credit Loan, the Swing Line Lender shall have given the Borrower one Business Day’s notice of its intent to make such request; and provided further the provisions of this Section 2.19 shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of this Agreement. Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph clauses (d) or (e) of this Section 4.1 2.19 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (12:00 P.M., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givenin accordance with Section 2.3. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfExcept as otherwise provided in Section 2.19(e), prior to if the making Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each Lender shall, at the option of the Swing Line Lender exercised reasonably, notwithstanding the expiration or termination of the Commitments, make a Revolving Credit Loan in an amount equal to such Lender’s Commitment Percentage determined on the date of, and immediately prior to, the expiration or termination of the Commitments, of the aggregate principal amount of such Swing Line Loans. Each Lender will make the proceeds of any Revolving Credit Loan made pursuant to paragraph the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 2:00 P.M., New York City time, in funds immediately available on the Business Day on which the Commitments expire or terminate; provided, however, in the event that the Lenders do not receive notice of such termination before 12:00 P.M., New York City time on such date such proceeds shall be made available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent, in immediately available funds, prior to 12:00 P.M., New York City time, on the immediately succeeding Business Day. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments.
(ce) of If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to Section 4.12.19(c), one of the events described in paragraph clause (jf) of Section 12.1 Article 7 shall have occurredoccurred and be continuing with respect to the Borrower, each Multi-Currency Lender willshall, on the date such Revolving Credit Loan was to have been mademade pursuant to the notice referred to in Section 2.19(c), purchase for cash an undivided participating interest in the Refunded then outstanding Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer Loans by paying to the Swing Line Lender an amount (the “Swing Line Participation Amount”) equal to (i) such Lender, in immediately available funds, ’s Commitment Percentage times (ii) the sum of the aggregate principal amount of its participationSwing Line Loans then outstanding that were to have been repaid with such Revolving Credit Loans.
(ef) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to such Multi-Currency 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 Multi-Currency Lender’s participating interest was outstanding and funded) funded and, in like funds as receivedthe 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 Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
(g) Each Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.19(c) and Section 2.19(d) and to purchase participating interests pursuant to Section 2.19(e) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that 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 or the failure to satisfy any of the other conditions specified in Article 4, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any Note by the Borrower, any Guarantor 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 (Phillips 66)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “"Swing Line Loan”; collectively, the “Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time; and
(b) The Swing Line Bank may on the terms and subject to the conditions hereinafter set forth (including Section 4.3) make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Banks; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans Second Amended and Restated Revolving Credit Agreement 42 (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments. All Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement. Each Swing Line Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Bank's obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “"Swing Line Loan”; collectively, the “Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time; and
(b) Swing Line Bank may on the terms and subject to the conditions hereinafter set forth (including Section 4.3) make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Banks; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments. All Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement. Each Swing Line Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior modify or affect any Bank's commitment to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more Floor Plan Loans based upon its Pro Rata Share of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Floor Plan Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsCommitment.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under Borrowers (on a joint and several basis as between the Aggregate Commitment Borrowers) from time to time during the Tranche B-1 Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed an amount agreed from time to time between the Parent Borrower and the Swing Line Lender, but in any event not greater than $30,000,000250.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the Dollar Equivalent of the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrowers under this Section 4.1 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodTranche B- 1 Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrowers shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Parent Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 12:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent (or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date later time as may be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available agreed by the Swing Line Lender to in its reasonable discretion) on the Company by crediting requested Borrowing Date specifying the account identity of each applicable Borrower (if not the Parent Borrower) and the amount of the Company designated to the requested Swing Line Lender with such proceedsLoan, which shall be in a minimum amount of $1.0 million or whole multiples of $500,000 in excess thereof.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Parent Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under Section 9(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the joint and several obligations of the Borrowers to prepay Swing Line Loans in accordance with the provisions of Section 4.4(b)(iii). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph paragraph
(dc) of this Section 4.1 2.7 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent given notwithstanding (i) that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Mandatory Revolving Loan pursuant to clause (d) above, Borrowing may not comply with the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such minimum amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is for Revolving Loans otherwise required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.hereunder,
Appears in 1 contract
Sources: Credit Agreement
Swing Line Commitments. (a) Subject to the terms and conditions hereof, from time to time prior to the Revolving Credit Termination Date and to the Sterling Subsidiary Borrowers (i) the Sterling Swing Line Lender agrees to make swing line loans Sterling Swing Line Loans in Sterling in an aggregate principal amount not to exceed the Sterling equivalent of U.S.$20,000,000 at any one time outstanding (each of the foregoing individually, a “Sterling Swing Line Loan”; collectively, collectively the “Sterling Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000); providedprovided that, however, that at no time (after giving effect to the making of such Sterling Swing Line Loan Loans, the aggregate principal amount of Swing Line Loans under any Revolving Facility at any one time outstanding shall not exceed U.S.$100,000,000 and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Sterling Revolving Extensions of Credit shall not exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowedSterling Commitments. All Sterling Swing Line Loans shall be made as Alternate Base Reference Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company relevant Sterling Subsidiary Borrowers shall give the Swing Line Lender Sterling Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Sterling Administrative Agent at or prior to 1:00 P.M., New York City time London time, on the requested borrowing dateBorrowing Date (U.K.)), specifying the amount of each requested Sterling Swing Line Loan, which shall be greater than or equal to a minimum amount to be agreed upon by such Sterling Subsidiary Borrowers and the relevant Sterling Swing Line Lender. Upon such notice, the Sterling Administrative Agent shall promptly notify the Sterling Swing Line Lender thereof. The Sterling Swing Line Lender shall not make the amount of each borrowing available to the relevant Sterling Subsidiary Borrowers in the manner directed by the Sterling Administrative Agent on the requested Borrowing Date; provided, notwithstanding the foregoing and without necessity of any notice to Sterling Administrative Agent, any UK Cash Management Advance made by the Sterling Swing Line Loan Lender under the UK Cash Management Agreement shall constitute a Sterling Swing Line Loan, and shall reduce availability for additional Swing Line Loans under this subsection 2.3 in an amount equal to the period commencing on the first Business Day after it receives written notice from the Administrative Agent or amount of UK Cash Management Advances hereunder outstanding at any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfiedtime. The Sterling Swing Line Lender shall not otherwise be required to determine that, or take give notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account Sterling Administrative Agent on a daily basis of the Company designated to the Swing Line Lender with such proceedsoutstanding principal balance of UK Cash Management Advances.
(b) The Company hereby agrees that each Swing Line Loan made by the Sterling Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company relevant Sterling Subsidiary Borrower (which hereby irrevocably directs the Sterling Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Sterling Lender, including the Sterling Swing Line Lender, with respect to all other Sterling Swing Line Loans, to make a Revolving Credit Loan (as an Alternate Base Rate Sterling Loan) , in an amount equal to such Multi-Currency Sterling Lender’s Commitment Revolving Percentage under the Sterling Facility of the amount of the Sterling Swing Line Loans (the “Refunded Sterling Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 of the Credit Agreement shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.3 shall apply) ), each Multi-Currency Sterling Lender shall make the proceeds of its Revolving Credit Sterling Loan available to the Sterling Administrative Agent for the account of the Sterling Swing Line Lender for its own account Lender, at the office specified for of the Swing Line Lender in Section 14.2 Sterling Administrative Agent prior to 1:00 P.M. 12:00 Noon (New York City London time) in funds immediately available on the Business Day (U.K.) next succeeding the date such notice is given. The proceeds of such Revolving Credit Sterling Loans shall be immediately applied to repay the Refunded Sterling Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(dc) If, prior to the making of a Revolving Credit Sterling Swing Line Loan pursuant to paragraph (cb) of Section 4.1this subsection 2.3, one of the events described in paragraph (jf) of Section 12.1 8 of the Credit Agreement shall have occurred, each Multi-Currency Sterling Lender hereby agrees to and will, on the date such Revolving Credit Sterling Swing Line Loan was to have been made, purchase an undivided participating interest in the each Refunded Sterling Swing Line Loan in an amount equal to its Commitment Revolving Percentage under the Sterling Facility of such Refunded Sterling Swing Line Loan. Each Multi-Currency Such Revolving Credit Lender will immediately transfer to the Sterling Administrative Agent for the account of the Sterling Swing Line Lender, in immediately available funds, funds of the amount of its participationparticipations and, upon its receipt of its ratable share thereof, the Sterling Swing Line Lender will deliver to such Sterling Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Sterling Swing Line Lender has received from any Multi-Currency Sterling Lender such Multi-Currency Sterling Lender’s participating interest in a Refunded Sterling Swing Line Loan pursuant to clause (d) above, and the Sterling Swing Line Lender receives any payment on account thereof, the Sterling Swing Line Lender will distribute to such Multi-Currency Sterling Lender through the Sterling Administrative Agent its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as receivedinterest; provided, however, that in the event that such payment received by the Sterling Swing Line Lender is required to be returned, such Multi-Currency Sterling Lender will return to the Sterling Swing Line Lender through the Sterling Administrative Agent any portion thereof previously distributed by the Sterling Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided15,000,000, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Credit Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.5 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.2:00 p.m., New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $1,000,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Dollars.
(b) The Borrower agrees that, in Dollars and in immediately available funds, upon the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant request to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made Administrative Agent by the Company to such Swing Line Lender, in order to evidence the books Swing Line Loans the Borrower will execute and records deliver to the Swing Line Lender a promissory note substantially in the form of such Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line Lender and in such manner as is reasonable and customary for it and a certificate representing the obligation of an officer the Borrower to pay the amount of such the Swing Line LenderCommitment or, setting forth in reasonable detail if less, the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence unpaid principal amount of the accuracy Swing Line Loans, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (a) be dated the Effective Date, (b) be stated to mature on the Termination Date and (c) provide for the payment of the information so recorded; provided, however, that the failure to make any such recording or any error interest in such recording shall not in any way affect the Payment Obligations of the Company hereunderaccordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Revolving Credit Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Revolving Credit Lender’s 's Revolving Credit Commitment Percentage of the principal amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the Borrower's obligations to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(e). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Credit Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.5 shall apply) ), each Multi-Currency Revolving Credit Lender shall will make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIf the Revolving Credit Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, prior to each Revolving Credit Lender shall, at the making option of the Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments, make a Revolving Credit Loan pursuant to paragraph as an ABR Loan or (cii) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Credit Lender's Revolving Credit Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans. Each Multi-Currency Revolving Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Revolving Credit Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Revolving Credit Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate, substantially in the form of Exhibit I, dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lenderit.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the Company in Dollars under the Aggregate Commitment U.S. Borrowers from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00050.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan and Loans, Revolving Loans (including, without limitation, in the use case of Revolving Loans then outstanding in any Designated Foreign Currency, the Dollar Equivalent of the proceeds aggregate principal amount thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit and L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Parent Borrower (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time, in the case of any Swing Line Loan made in Dollars) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, by crediting the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records account of such Swing Line Lender and Borrower at such office with such proceeds in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderDollars.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”"SWING LINE LOAN"; collectively, the “Swing Line Loans”"SWING LINE LOANS") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided20,000,000, however, PROVIDED that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Credit Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower (on behalf of itself or such other Borrower, as the case may be) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying (i) the identity of the Borrower and (ii) the amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, by crediting the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence account of the accuracy of the information so recorded; provided, however, that the failure to make any Borrower at such recording or any error office with such proceeds in such recording shall not in any way affect the Payment Obligations of the Company hereunderDollars.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender Bank hereby agrees to make swing line loans to the Company (individually, a “Committed Swing Line Loan”; collectively, collectively the “Committed Swing Line Loans”; or the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment from time to time during the Commitment Period applicable to the Swing Line Bank in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender Commitment; provided that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans, together with the aggregate unpaid principal amount of all Revolving Credit Loans, LOC Obligations and all Bid Loans at any one time outstanding, may not exceed the aggregate amount of the Commitments. Amounts borrowed by the Company under this subsection 2.19 may be repaid and, through but excluding the Termination Date applicable to the Swing Line Bank, reborrowed. All Committed Swing Line Loans shall be made as ABR Loans and may not be converted into Eurodollar Loans. Each borrowing of Swing Line Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company shall give the Administrative Agent (which shall promptly notify the Swing Line Bank) irrevocable notice (which notice must be received by the Administrative Agent prior to 2:00 P.M., New York City time) on the requested Borrowing Date specifying the amount of the requested Committed Swing Line Loan to be made by the Swing Line Bank. The proceeds of each Committed Swing Line Loan shall be made available by the Swing Line Bank to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified prior to 4:30 p.m. on the requested Borrowing Date.
(b) The Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender Bank to the Company shall be evidenced by a promissory note of the Company substantially in the form of Exhibit I, with appropriate insertions (the “Swing Line Note”), payable to the order of the Swing Line Bank and representing the obligation of the Company to pay the unpaid principal amount of the Swing Line Loans made to the Company, with interest thereon as prescribed in subsection 2.9. The Swing Line Bank is hereby authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) the Company and (ii) the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of and interest with respect to each its Swing Line Loan made by the Company to Note (or any continuation thereof) and any such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided. Each Swing Line Note shall (a) be dated the Closing Date, however(b) be stated to mature on the Termination Date applicable to the Swing Line Bank and (c) bear interest for the period from the date thereof to the applicable Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderand payable as specified in, subsection 2.9.
(c) The In the event that the Company has not notified the Administrative Agent of its intent to repay the Swing Line LenderLoans made on any Borrowing Date by 12:00 noon New York City time on the Business Day immediately following such Borrowing Date and has not in fact repaid such Swing Line Loans (including accrued interest thereon) in full by such time, at any time in its sole and absolute discretion, may, and (i) at any time as there the Company shall be $25,000,000 deemed to have made an irrevocable request to the Administrative Agent under subsection 2.3 (which for purposes of this subsection shall be deemed to be timely and sufficient) for a borrowing on such date of Revolving Credit Loans that are ABR Loans in an aggregate amount equal to the then unpaid aggregate principal amount of such Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available made to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is givenCompany. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded such Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfIn the event that for any reason whatsoever (including, prior without limitation, the occurrence of an event specified in paragraph (g) of Section 7 with respect to the making of a Revolving Credit Loan pursuant to Company), the procedures set forth in the foregoing paragraph (c) of Section 4.1are not followed, one each Bank shall, upon notice from the Administrative Agent, promptly purchase from the Swing Line Bank participations in (or, if and to the extent specified by the Swing Line Bank, a direct interest in) the Swing Line Loans made by the Swing Line Bank (collectively, the “Unrefunded Swing Line Loans”) in an aggregate amount equal to the amount of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to it would have been made, purchase an undivided participating interest obligated to make pursuant to the procedures set forth in the Refunded Swing Line foregoing paragraph (c).
(e) Each Bank shall, not later than 4:00 P.M. New York City time on the Business Day on which such notice is received (if such notice is received by 2:15 P.M. New York City time) or 9:00 A.M. New York City time on the next succeeding Business Day (if such notice is received after 2:15 P.M. New York City time), make available the amount of the Revolving Credit Loan to be made by it (or the amount of the participations or direct interests to be purchased by it, as the case may be) to the Administrative Agent at the applicable office of the Administrative Agent specified in an subsection 9.2 and the amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer so received by the Administrative Agent shall promptly be made available to the Swing Line LenderBank by remitting the same, in immediately available funds, to the amount Swing Line Bank, in accordance with the provisions of its participationparagraph (g) below.
(ef) Whenever, at any time after the Swing Line Lender Bank has received from any Multi-Currency Lender Bank such Multi-Currency LenderBank’s participating interest in a Refunded an Unrefunded Swing Line Loan pursuant to clause paragraph (d) above, the Swing Line Lender Bank receives any payment on account thereof, the Swing Line Lender Bank will distribute to such Multi-Currency Lender Bank its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency LenderBank’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender Bank is required to be returned, such Multi-Currency Lender Bank will return to the Swing Line Lender Bank any portion thereof previously distributed by the Swing Line Lender Bank to it it.
(g) All payments (including prepayments) to be made by the Company hereunder and under the Swing Line Notes, whether on account of principal, interest, fees or otherwise, shall be made without set off, counterclaim or any other deduction whatsoever and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Swing Line Bank, at the Administrative Agent’s office specified in subsection 9.2, in Dollars and in immediately available funds, and upon receipt by the Administrative Agent of any payment made by the Company in accordance with the terms of this Agreement and the Swing Line Notes, the Company shall have satisfied its payment obligation with respect to the obligation on account of which such payment was made. Any such payment made at or after 1:00 P.M. New York City time, on any day shall be deemed made on the following Business Day. The Administrative Agent shall distribute such payments to the Swing Line Bank promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
(h) Anything in this Agreement to the contrary notwithstanding (including, without limitation, in subsection 4.2), the obligation of each Bank to make its Revolving Credit Loan (or purchase its participation or direct interest in such Swing Line Loan, as the case may be) pursuant to this subsection 2.19 is required unconditional under any and all circumstances whatsoever and shall not be subject to be returned by set-off, counterclaim or defense to payment that such Bank may have or have had against the Company, the Administrative Agent, the Swing Line LenderBank or any other Bank and, without limiting any of the foregoing, shall be unconditional irrespective of (i) occurrence of any Default or Event of Default, (ii) the financial condition of the Company, any Affiliate, the Administrative Agent, the Swing Line Bank or any other Bank or (iii) the termination or cancellation of the Commitments. The Company agrees that any Bank so purchasing a participation (or direct interest) in such Swing Line Loan may exercise all rights of set-off, bankers’ lien, counter claim or similar rights with respect to such participation as fully as if such Bank were a direct holder of a Swing Line Loan in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Western Union CO)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the Company in Dollars under the Aggregate Commitment Borrowers from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00020.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.4:00 P.M, New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including, without limitation, any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including, without limitation, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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 the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Great North Imports, LLC)
Swing Line Commitments. (a) Subject to the terms terms, conditions, representations and conditions hereofwarranties contained in the Loan Documents, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during until the Commitment Period in an aggregate principal amount at Swing Line Termination Date; provided that, the Swing Line Lender may not make any one time outstanding not to exceed $30,000,000; providedSwing Line Loan if, however, that at no time (after giving effect to the making of such Swing Line Loan and Loan, either (i) the use amount of all Swing Line Loans outstanding would exceed the proceeds thereoflesser of (x) may $10,000,000 or (y) the Aggregate Available Commitments or (ii) the Aggregate Outstanding Multi-Currency Extensions of Credit of all Lenders would exceed the Maximum AvailabilityTotal Commitment. Amounts borrowed by the Company Borrower under this Section 4.1 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodSwing Line Termination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, a Notice of Borrowing (which notice shall be in substantially the form Notice of Exhibit H-3 (a “Swing Line Loan Request”), and which notice Borrowing must be received by the Swing Line Lender prior to 1:00 P.M., New York City time Dallas, Texas time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed in Section 14.2by crediting the account of the Borrower, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made so directed by the Company to Borrower in a Notice of Borrowing, with such proceeds in Dollars.
(b) The Borrower agrees that, upon the request of the Swing Line Lender, in order to evidence the books Swing Line Loans, the Borrower will execute and records deliver to the Swing Line Lender a promissory note substantially in the form of such Exhibit ------- F-2, with appropriate insertions (as the same may be amended, supplemented, --- replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line Lender and in such manner a principal amount equal to $10,000,000 with interest thereon as is reasonable and customary for it and a certificate prescribed in Section 4.1. The Swing Line Note shall (i) be dated the Effective Date or the date of an officer any reissuance of such Swing Line LenderNote, setting forth (ii) be stated to mature on the Swing Line Termination Date and (iii) provide for the payment of interest in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderaccordance with Section 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Committed Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Lender’s Commitment 's Specified Percentage of the principal amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Each Lender shall will make the proceeds of its Revolving Credit Committed Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (New York City 12:00 Noon, Dallas, Texas time) , in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Committed Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to for any reason, Committed Loans may not be (as determined by the making of a Revolving Credit Loan Administrative Agent in its sole discretion), or are not, made pursuant to paragraph (cSection 2.4(c) of Section 4.1to repay Swing Line Loans as required by such Section, one of the events described in paragraph (j) of Section 12.1 shall have occurredthen, each Multi-Currency Lender will, effective on the date such Revolving Credit Loan was to Committed Loans would otherwise have been made, each Lender severally, unconditionally and irrevocably agrees that it shall purchase an undivided participating interest in the Refunded such Swing Line Loan Loans ("Unrefunded Swing Line Loans"), in an amount equal to its Commitment such Lender's Specified Percentage of such Refunded the amount of Unrefunded Swing Line LoanLoans (which amount, if the Commitments shall have terminated, shall be determined on the basis of such Lender's Specified Percentage (determined on the date of, and immediately prior to, termination of the Commitments). Each Multi-Currency In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender will shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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 the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Notwithstanding anything to the contrary in like funds as this Agreement, each Lender's obligation to make the Committed Loans referred to in Section 2.4(c) and to purchase and fund participating interests pursuant to Section 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such payment is required to be returned by 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 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 any Loan Party; (iv) any breach of this Agreement or any other Loan Document by any Loan Party or any 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 (Media General Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000170.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and L/C Obligations exceed the lesser of the Commitments then in effect and the use of Borrowing Base as then in effect (based on the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum AvailabilityBorrowing Base Certificate last delivered). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar EurocurrencyTerm SOFR Loans. The Company Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.3:00 P.Mp.m., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the ClosingAmendment No. 3 Effective Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated as of the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and ClosingAmendment No. 3 Effective Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9.1(f)) request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including, without limitation, any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noonp.m., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including, without limitation, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender’s Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Lenders to share in such Swing Line Loans ratably based upon their respective Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noonp.m., New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated as of the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.Mp.m., New York City time, on a Business Day, distribute to such Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency LenderL▇▇▇▇▇’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Lender’s obligation to make Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the each Swing Line Lender severally (but not jointly) agrees to make swing line loans in Dollars (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment Borrower or a Subsidiary Borrower from time to time during prior to the Commitment Period Revolving Credit Termination Date in an aggregate principal amount not to exceed 50% of $30,000,000 at any one time outstanding and Chase, as Swing Line Lender, agrees to make Swing Line Loans in Sterling in an aggregate principal amount not to exceed the Optional Currency Equivalent of $30,000,000; provided30,000,000 at any one time outstanding, howeverprovided that, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may Loans, the Aggregate Outstanding Multi-Currency Revolving Extensions of Credit will not exceed the Maximum AvailabilityRevolving Credit Commitments and the aggregate principal amount of Swing Line Loans at any one time outstanding shall not exceed $30,000,000 or the Optional Currency Equivalent thereof; provided, further, that any Swing Line Loan made to a Subsidiary Borrower which is a resident for taxation purposes in the United Kingdom shall be repaid within 364 days and shall be made by an Eligible UK Bank. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.6 may be repaid and, up to but excluding during the last day of the Revolving Credit Commitment Period, reborrowed. All Swing Line Loans in Dollars shall be made as Alternate Base Rate ABR Loans, and Swing Line Loans in Sterling shall be made on terms agreed upon by Chase and shall not be entitled to be converted into Eurodollar Loansthe Borrower. The Company Borrower or applicable Subsidiary Borrower shall give the Swing Line Lender Administrative Agent irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Administrative Agent, in the case of Swing Line Lender Loans in Dollars, at or prior to 1:00 P.M., New York City time and, in the case of Swing Line Loans in Sterling, at or prior to 1:00 P.M., London time) on the requested borrowing date, Borrowing Date specifying the amount of each requested Swing Line Loan, which shall be in an aggregate minimum amount of $250,000 or a whole multiple thereof. The Upon receipt of any such notice, the Administrative Agent shall promptly notify each Swing Line Lender thereof. Each Swing Line Lender shall not make any the amount of its pro rata share of each borrowing in Dollars available, and Chase, as Swing Line Loan Lender, shall make the amount of each borrowing in Sterling available, to the Borrower or applicable Subsidiary Borrower in the period commencing on the first Business Day after it receives written notice from manner directed by the Administrative Agent or any Multi-Currency Lender that one or more of on the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsrequested Borrowing Date.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line LenderLenders, at any time and in its their sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower or applicable Subsidiary Borrower (which hereby irrevocably directs the Swing Line Lender Lenders to act on its behalf) ), request each Multi-Currency Lender Revolving Credit Lender, including each Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment 's Revolving Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on 49 43 the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (dc) of this Section 4.1 subsection 2.6 shall apply) ), each Multi-Currency Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender Lenders or for its own the account of Chase, as Swing Line Lender, as applicable, at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. 12:00 Noon (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(dc) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (cb) of Section 4.1subsection 2.6, one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Revolving Credit Lender hereby agrees to and will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the each Refunded Swing Line Loan in an amount equal to its Commitment Revolving Percentage of such Refunded Swing Line Loan. Each Multi-Currency Revolving Credit Lender will immediately transfer to the Administrative Agent for the account of the Swing Line Lenders or for the account of Chase, as Swing Line Lender, as applicable, in immediately available funds, the amount of its participationparticipations and, upon its receipt of its pro rata share thereof, each Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the any Swing Line Lender has received from any Multi-Currency Revolving Credit Lender such Multi-Currency Revolving Credit Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the and such Swing Line Lender receives any payment on account thereof, the such Swing Line Lender will distribute to such Multi-Currency Revolving Credit Lender through the Administrative Agent its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Credit Lender’s 's participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the such Swing Line Lender is required to be returned, such Multi-Currency Revolving Credit Lender will return to the such Swing Line Lender through the Administrative Agent any portion thereof previously distributed by the such Swing Line Lender to it in like funds as such payment is required to be returned by the such Swing Line Lender.
Appears in 1 contract
Sources: Credit Agreement (Scotts Company)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time.
(b) The Swing Line Bank may, on the terms and subject to the conditions hereinafter set forth (including Section 4.3), make one or more Swing Line Loans to any Floor Plan Borrower from time to time on any Business Day during the period from the Closing Date to the Maturity Date in an aggregate principal amount greater than the Swing Line Commitment but not to exceed at any time (not including Swing Line Overdraft Loans) the aggregate amount of the Floor Plan Loan Commitments of all the Lenders; provided, however, that at no time (after giving effect to all Borrowings of Swing Line Loans, Floor Plan Loans and all Floor Plan Loans requested on any date, the making sum of such the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not exceed the aggregate amount of the then applicable aggregate Floor Plan Loan Commitments.
(c) Unless otherwise refinanced pursuant to Section 4.5, all Swing Line Loans (including the Swing Line Overdraft Loans) shall be evidenced by the Swing Line Note, under which advances, repayments and readvances may be made, subject to the terms and conditions of this Agreement, and all other Swing Line Loans shall be due and payable on each Floor Plan Adjustment Date. Each Swing Line Loan that is a Eurodollar Loan shall mature and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed principal amount thereof shall be due and payable by the Company under this Section 4.1 applicable Floor Plan Borrower, as the case may be repaid andbe, up to but excluding on the last day of the Commitment Period, reborrowedInterest Period applicable thereto. All Swing Line Loans In no event whatsoever shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “any outstanding Swing Line Loan Request”)be deemed to reduce, and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make modify or affect any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and Lender’s obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender Chase agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") available to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided5,000,000, however, provided that at no time (after giving effect to shall the making aggregate principal amount of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Loans outstanding, when added to Chase's then Outstanding Multi-Currency Tranche A Revolving Extensions of Credit and Chase's Tranche A Revolving Credit Commitment Percentage of the then Outstanding Permitted Line of Credit Indebtedness, exceed the Maximum AvailabilityChase's Tranche A Revolving Credit Commitment. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.6 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each borrowing of Swing Line Lender irrevocable notice, which notice Loans shall be in substantially the form an amount equal to $100,000 or a whole multiple of Exhibit H-3 $100,000 in excess thereof. The Borrower shall give Chase irrevocable notice (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Chase prior to 1:00 P.M.12:00 Noon, New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender Chase to the Company Borrower at the office of Chase specified in subsection 10.2 by crediting the account of the Company designated to the Swing Line Lender Borrower at such office with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made Loans shall be evidenced by a promissory note of the Borrower substantially in the form of Exhibit B, with appropriate insertions (the "Swing Line Lender Note"), payable to the Company pursuant to this Section 4.1 shall constitute order of Chase and representing the promise and obligation of the Company Borrower to pay to such Swing Line Lender, at the office unpaid principal amount of the Swing Line Lender listed Loans, with interest thereon as prescribed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Datesubsection 2.9. The Company Chase is hereby agrees that the Swing Line Lender is authorized to record (i) the date and Borrowing Date, the amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal thereof, on the schedule annexed to and constituting a part of and interest with respect to each the Swing Line Loan made by the Company to Note and any such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided. The Swing Line Note shall (a) be dated the Closing Date, however(b) be stated to mature on the Termination Date and (c) bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum determined as provided in, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunderand payable as specified in, subsection 2.9.
(c) The Swing Line Lender, Chase at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs the Swing Line Lender Chase to act on its behalf) request prior to 12:00 Noon (New York City time) each Multi-Currency Lender Lender, including Chase, to make a Tranche A Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment 's Tranche A Revolving Credit Percentage of the amount of the Swing Line Loans (the “"Refunded Swing Line Loans”") outstanding on the date such notice is given. Unless any of the events described in paragraph (jf) of Section 12.1 8 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.6 shall apply) each Multi-Currency Lender shall make the proceeds of its Tranche A Revolving Credit Loan available to Chase for the Swing Line Lender for its own account of Chase at the office of Chase specified for the Swing Line Lender in Section 14.2 subsection 10.2 prior to 1:00 2:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Tranche A Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails Each Tranche A Revolving Credit Loan made pursuant to make such payment to the Swing Line Lender, on demand, the Company this subsection 2.6(c) shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line be an ABR Loan.
(d) If, If prior to the making of a Tranche A Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, this subsection 2.6 one of the events described in paragraph (jf) of Section 12.1 8 shall have occurred, each Multi-Currency Lender will, will on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Tranche A Revolving Credit Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line LenderChase, in immediately available funds, the amount of its participationparticipation and upon receipt thereof Chase 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 the Swing Line Lender Chase has received from any Multi-Currency Lender such Multi-Currency Lender’s 's participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender Chase receives any payment on account thereof, the Swing Line Lender Chase will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, adjusted in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s 's participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender Chase is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender Chase any portion thereof previously distributed by Chase to it.
(f) Each Lender's obligation to purchase participating interests pursuant to this subsection 2.6 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 Swing Line Lender to it Borrower may have against Chase, the Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any adverse change in like funds as such payment is required to be returned the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement by the Swing Line Borrower 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, JPMorgan Chase Bank, N.A. (in such capacity, the “Swing Line Lender Lender”) agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) in Dollars to the Company in Dollars under the Aggregate Commitment Borrower from time to time on any Business Day during the period from the Closing Date to the Commitment Period Termination Date of the Swing Line Lender in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; providedthe Swing Line Commitment, however, provided that at no time (after giving effect to may the making of such Swing Line Loan and the use aggregate principal amount of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Total Extensions of Credit exceed the Maximum Availabilityaggregate amount of the Commitments. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of During the Commitment Period, reborrowed. All the Borrower may use the Swing Line Commitments by borrowing, prepaying the Swing Line Loans shall in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Swing Line Loans may from time to time be made as Alternate Base (i) ABR Loans, (ii) ASK Rate Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance herewith and shall not be entitled to be converted into Eurodollar Loans or Reference Rate Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which written notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the such Swing Line Lender prior to 1:00 (x) 3:00 P.M., New York City time time, in the case of ABR Loans and (y) 2:00 P.M., New York City time, in the case of ASK Rate Loans), on the requested borrowing date, Borrowing Date specifying the Type and amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each all such Swing Line Loan Loans will then be made available to the Borrower by the Swing Line Lender to the Company by crediting the account of the Company Borrower on the books of the Swing Line Lender, or such other account of the Borrower as shall have been designated by the Borrower to the Swing Line Lender.
(c) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the Swing Line Lender the then unpaid principal amount of each Swing Line Loan on the earlier of (x) the Commitment Termination Date and (y) the 14th Business Day after such Swing Line Loan was made (or such earlier date on which the Swing Line Loans become due and payable pursuant to Article 7). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Swing Line Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.9.
(i) The Swing Line Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that resulting from each Swing Line Loan made by from time to time, including the amounts of principal and interest payable and paid to the Swing Line Lender from time to time under this Agreement.
(ii) The Administrative Agent shall maintain the Company Register pursuant to this Section 4.1 shall constitute 9.6(d), and a subaccount therein for the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record recorded (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) hereunder and the Type thereof, (ii) the date and amount of each payment any principal or prepayment of principal of interest due and interest with respect payable or to each become due and payable from the Borrower to the Swing Line Loan made Lender hereunder and (iii) the amount of any sum received by the Company to such Administrative Agent hereunder from the Borrower for the account of the Swing Line Lender, .
(iii) The entries made in the books Register and records the account of such the Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, maintained pursuant to Section 2.19(b)(ii) shall, in to the absence of manifest errorextent permitted by applicable Law, constitute be prima facie evidence of the accuracy existence and amounts of the information so obligations of the Borrower therein recorded; provided, however, that the failure of the Swing Line Lender or the Administrative Agent to make maintain the Register or any such recording account, or any error in such recording therein, shall not in any way manner affect the Payment Obligations obligation of the Company hereunderBorrower to repay (with applicable interest) the Swing Line Loans made the Borrower by the Swing Line Lender in accordance with the terms of this Agreement.
(civ) The Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender, the Borrower will execute and deliver to the Swing Line Lender a promissory note of 44 the Borrower evidencing the Swing Line Loans of the Swing Line Lender, substantially in the form of Exhibit B with appropriate insertions as to date and principal amount (a “Swing Line Note”).
(d) The Swing Line Lender, at any time Lender in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on the last for more than 10 Business Day of any calendar week shallDays, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender (in accordance with the notice provisions under Section 2.3), including the Swing Line Lender, to make a Revolving Credit Loan (as that is a Eurodollar Loan with an Alternate Base Rate Loan) Interest Period of one month in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the principal amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that prior to making any such request to the Lenders to make such a Revolving Credit Loan, the Swing Line Lender shall have given the Borrower one Business Day’s notice of its intent to make such request; and provided further the provisions of this Section 2.19 shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of this Agreement. Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph clauses (d) or (e) of this Section 4.1 2.19 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (12:00 P.M., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givenin accordance with Section 2.3. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To .
(e) Except as otherwise provided in Section 2.19(e), if the extent that Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line LenderLender exercised reasonably, on demandnotwithstanding the expiration or termination of the Commitments, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of make a Revolving Credit Loan in an amount equal to such Lender’s Commitment Percentage determined on the date of, and immediately prior to, the expiration or termination of the Commitments, of the aggregate principal amount of such Swing Line Loans. Each Lender will make the proceeds of any Revolving Credit Loan made pursuant to paragraph the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 2:00 P.M., New York City time, in funds immediately available on the Business Day on which the Commitments expire or terminate; provided, however, in the event that the Lenders do not receive notice of such termination before 12:00 P.M., New York City time on such date such proceeds shall be made available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent, in immediately available funds, prior to 12:00 P.M., New York City time, on the immediately succeeding Business Day. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments.
(cf) of If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to Section 4.12.19(c), one of the events described in paragraph clause (jf) of Section 12.1 Article 7 shall have occurredoccurred and be continuing with respect to the Borrower, each Multi-Currency Lender willshall, on the date such Revolving Credit Loan was to have been mademade pursuant to the notice referred to in Section 2.19(d), purchase for cash an undivided participating interest in the Refunded then outstanding Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer Loans by paying to the Swing Line Lender an amount (the “Swing Line Participation Amount”) equal to (i) such Lender, in immediately available funds, ’s Commitment Percentage times (ii) the sum of the aggregate principal amount of its participationSwing Line Loans then outstanding that were to have been repaid with such Revolving Credit Loans.
(eg) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to such Multi-Currency 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 Multi-Currency Lender’s participating interest was outstanding and funded) funded and, in like funds as receivedthe 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 Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
(h) Each Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.19(c) and Section 2.19(d) and to purchase participating interests pursuant to Section 2.19(e) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that 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 or the failure to satisfy any of the other conditions specified in Article 4, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any Note by the Borrower, any Guarantor 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,00050.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodRevolving Facility Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.3:00 p.m., New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000.00 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000.00 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company Borrower at an office of the Swing Line Lender by crediting the account of the Company designated to the Swing Line Lender Borrower at such office with such proceedsproceeds in Dollars.
(b) The Company hereby Borrower agrees that each Swing Line Loan made that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Company Closing Date or in connection with any assignment pursuant to this Section 4.1 shall constitute subsection 10.6(b), in order to evidence the promise and obligation of the Company to pay to such Swing Line LenderLoans the Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit H-2, at with appropriate insertions (as the office same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the order of the Swing Line Lender listed in Section 14.2and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, in Dollars and in immediately available fundsif less, the aggregate unpaid principal amount of all the Swing Line Loans made by such to the Borrower, with interest thereon as prescribed in subsection 3.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Revolving Facility Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 3.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 8(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Revolving Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 2.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan Loan, including any Eurocurrency Loan, available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Revolving Lender at such time. The proceeds of such Revolving Credit Loans Loans, including any Eurocurrency Loan, shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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 the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 p.m., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and (d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender; (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (HSI IP, Inc.)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, JPMorgan Chase Bank, N.A. (in such capacity, the “Swing Line Lender Lender”) agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) in Dollars to the Company in Dollars under the Aggregate Commitment Borrower from time to time on any Business Day during the period from the Availability Date to the Commitment Period Termination Date of the Swing Line Lender in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; providedthe Swing Line Commitment, however, provided that at no time (after giving effect to may the making of such Swing Line Loan and the use aggregate principal amount of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Total Extensions of Credit exceed the Maximum Availabilityaggregate amount of the Commitments. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of During the Commitment Period, reborrowed. All the Borrower may use the Swing Line Commitments by borrowing, prepaying the Swing Line Loans shall in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Swing Line Loans may from time to time be made as Alternate Base (i) ABR Loans, (ii) ASK Rate Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance herewith and shall not be entitled to be converted into Eurodollar Loans or Reference Rate Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which written notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the such Swing Line Lender prior to 1:00 (x) 3:00 P.M., New York City time time, in the case of ABR Loans and (y) 2:00 P.M., New York City time, in the case of ASK Rate Loans), on the requested borrowing date, Borrowing Date specifying the Type and amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $500,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $100,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each all such Swing Line Loan Loans will then be made available to the Borrower by the Swing Line Lender to the Company by crediting the account of the Company Borrower on the books of the Swing Line Lender, or such other account of the Borrower as shall have been designated by the Borrower to the Swing Line Lender.
(i) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the Swing Line Lender the then unpaid principal amount of each Swing Line Loan on the earlier of (x) the Commitment Termination Date and (y) the 14th Business Day after such Swing Line Loan was made (or such earlier date on which the Swing Line Loans become due and payable pursuant to Article 7). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Swing Line Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.9.
(ii) The Swing Line Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that resulting from each Swing Line Loan made by from time to time, including the amounts of principal and interest payable and paid to the Swing Line Lender from time to time under this Agreement.
(iii) The Administrative Agent shall maintain the Company Register pursuant to this Section 4.1 shall constitute 9.6(d), and a subaccount therein for the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record recorded (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) hereunder and the Type thereof, (ii) the date and amount of each payment any principal or prepayment of principal of interest due and interest with respect payable or to each become due and payable from the Borrower to the Swing Line Loan made Lender hereunder and (iii) the amount of any sum received by the Company to such Administrative Agent hereunder from the Borrower for the account of the Swing Line Lender, .
(iv) The entries made in the books Register and records the account of such the Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, maintained pursuant to Section 2.19(b)(ii) shall, in to the absence of manifest errorextent permitted by applicable Law, constitute be prima facie evidence of the accuracy existence and amounts of the information so obligations of the Borrower therein recorded; provided, however, that the failure of the Swing Line Lender or the Administrative Agent to make maintain the Register or any such recording account, or any error in such recording therein, shall not in any way manner affect the Payment Obligations obligation of the Company hereunderBorrower to repay (with applicable interest) the Swing Line Loans made the Borrower by the Swing Line Lender in accordance with the terms of this Agreement.
(v) The Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender, the Borrower will execute and deliver to the Swing Line Lender a promissory note of the Borrower evidencing the Swing Line Loans of the Swing Line Lender, substantially in the form of Exhibit B with appropriate insertions as to date and principal amount (a “Swing Line Note”).
(c) The Swing Line Lender, at any time Lender in its sole and absolute discretion, discretion may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on the last for more than 10 Business Day of any calendar week shallDays, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender (in accordance with the notice provisions under Section 2.3), including the Swing Line Lender, to make a Revolving Credit Loan (as that is a Eurodollar Loan with an Alternate Base Rate Loan) Interest Period of one month in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the principal amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that prior to making any such request to the Lenders to make such a Revolving Credit Loan, the Swing Line Lender shall have given the Borrower one Business Day’s notice of its intent to make such request; and provided further the provisions of this Section 2.19 shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of this Agreement. Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph clauses (d) or (e) of this Section 4.1 2.19 shall apply) ), each Multi-Currency Lender shall will make the proceeds of its Revolving Credit Loan available to the Swing Line Lender Administrative Agent for its own the account at the office specified for of the Swing Line Lender in Section 14.2 at the office of the Administrative Agent prior to 1:00 P.M. (12:00 P.M., New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givenin accordance with Section 2.3. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) IfExcept as otherwise provided in Section 2.19(e), prior to if the making Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each Lender shall, at the option of the Swing Line Lender exercised reasonably, notwithstanding the expiration or termination of the Commitments, make a Revolving Credit Loan in an amount equal to such Lender’s Commitment Percentage determined on the date of, and immediately prior to, the expiration or termination of the Commitments, of the aggregate principal amount of such Swing Line Loans. Each Lender will make the proceeds of any Revolving Credit Loan made pursuant to paragraph the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 2:00 P.M., New York City time, in funds immediately available on the Business Day on which the Commitments expire or terminate; provided, however, in the event that the Lenders do not receive notice of such termination before 12:00 P.M., New York City time on such date such proceeds shall be made available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent, in immediately available funds, prior to 12:00 P.M., New York City time, on the immediately succeeding Business Day. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments.
(ce) of If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to Section 4.12.19(c), one of the events described in paragraph clause (jf) of Section 12.1 Article 7 shall have occurredoccurred and be continuing with respect to the Borrower, each Multi-Currency Lender willshall, on the date such Revolving Credit Loan was to have been mademade pursuant to the notice referred to in Section 2.19(d), purchase for cash an undivided participating interest in the Refunded then outstanding Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer Loans by paying to the Swing Line Lender an amount (the “Swing Line Participation Amount”) equal to (i) such Lender, in immediately available funds, ’s Commitment Percentage times (ii) the sum of the aggregate principal amount of its participationSwing Line Loans then outstanding that were to have been repaid with such Revolving Credit Loans.
(ef) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveParticipation Amount, the Swing Line Lender receives any payment on account thereofof the Swing Line Loans, the Swing Line Lender will distribute to such Multi-Currency 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 Multi-Currency Lender’s participating interest was outstanding and funded) funded and, in like funds as receivedthe 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 Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
(g) Each Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.19(c) and Section 2.19(d) and to purchase participating interests pursuant to Section 2.19(e) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that 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 or the failure to satisfy any of the other conditions specified in Article 4, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any Note by the Borrower, any Guarantor 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
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under Borrowers (on a joint and several basis as between the Aggregate Commitment Borrowers) from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed an amount agreed from time to time between the Parent Borrower and the Swing Line Lender, but in any event not greater than $30,000,000250,000,000; provided, however, provided that at no time (after giving effect to may the making sum of such the Dollar Equivalent of the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit Revolving L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrowers under this Section 4.1 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrowers shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Parent Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 12:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent (or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date later time as may be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available agreed by the Swing Line Lender to in its reasonable discretion) on the Company by crediting requested Borrowing Date specifying the account identity of each applicable Borrower (if not the Parent Borrower) and the amount of the Company designated to the requested Swing Line Lender with such proceedsLoan, which shall be in a minimum amount of $1,000,000 or whole multiples of $500,000 in excess thereof.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Parent Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under Section 9.1(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the joint and several obligations of the Borrowers to prepay Swing Line Loans in accordance with the provisions of Section 4.4(b)(vi). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (dc) of this Section 4.1 2.7 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to a Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this Section 2.7(c), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from a Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with Sections 2.7(b) and 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving Lender or any Borrower may have against the Swing Line Lender, any 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 condition (financial or otherwise) of any Borrower, (iv) any breach of this Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Lender, (v) any inability of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (Hertz Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under Borrowers (on a joint and several basis as between the Aggregate Commitment Borrowers) from time to time during the Tranche B-1 Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed an amount agreed from time to time between the Parent Borrower and the Swing Line Lender, but in any event not greater than $30,000,000250.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the Dollar Equivalent of the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrowers under this Section 4.1 2.7 may be repaid and, up to through but excluding the last day of the Commitment PeriodTranche B-1 Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrowers shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Parent Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 12:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent (or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date later time as may be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available agreed by the Swing Line Lender to in its reasonable discretion) on the Company by crediting requested Borrowing Date specifying the account identity of each applicable Borrower (if not the Parent Borrower) and the amount of the Company designated to the requested Swing Line Lender with such proceedsLoan, which shall be in a minimum amount of $1.0 million or whole multiples of $500,000 in excess thereof.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Parent Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under Section 9(f)) request each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the joint and several obligations of the Borrowers to prepay Swing Line Loans in accordance with the provisions of Section 4.4(b)(iii). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (dc) of this Section 4.1 2.7 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to a Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this Section 2.7(c), each Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation 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.
(ed) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Revolving Lender such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from a Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with Sections 2.7(b) and 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving Lender or any Borrower may have against the Swing Line Lender, any 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 condition (financial or otherwise) of any Borrower, (iv) any breach of this Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Lender, (v) any inability of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereofhereof and provided no Default or Event of Default shall have occurred and be continuing, the Swing Line Lender Chase agrees to make swing line loans to the Borrower (individually, a “"Swing Line Loan”"; collectively, collectively the “"Swing Line Loans”") to the Company in Dollars under the Aggregate Commitment from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided15,000,000, however, provided that at no time (after giving effect to shall the making aggregate principal amount of such Swing Line Loan and the use of the proceeds thereof) may the Loans outstanding, when added to Chase's then Aggregate Outstanding Multi-Currency Revolving Extensions of Credit, exceed Chase's Revolving Credit exceed the Maximum AvailabilityCommitment. Amounts borrowed by the Company under this Section 4.1 subsection 2.16 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Each borrowing of Swing Line Lender irrevocable notice, which notice Loans shall be in substantially the form an amount equal to $100,000 or a whole multiple of Exhibit H-3 $100,000 in excess thereof. The Borrower shall give Chase irrevocable notice (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender Chase prior to 1:00 P.M.11:00 A.M., New York City time time), on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender Chase to the Company Borrower at the office of Chase by crediting the account of the Company designated to the Swing Line Lender Borrower at such office with such proceeds. The Swing Line Loans shall mature on the Termination Date and bear interest for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding the applicable interest rate per annum determined as provided in, and payable as specified in, subsection 2.19.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, Chase at any time in its sole and absolute discretion, may, and on each Monday (ior if such day is not a Business Day, the next Business Day) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company Borrower (which hereby irrevocably directs the Swing Line Lender Chase to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.11:00 A.M.,
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”"SWING LINE LOAN"; collectively, the “Swing Line Loans”"SWING LINE LOANS") to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided5,000,000, however, PROVIDED that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Credit Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Credit Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.6 may be repaid and, up to through but excluding the last day of the Commitment PeriodTermination Date, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M.3:00 p.m., New York City time time) on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender Loan which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent an amount equal to $250,000 or any Multi-Currency Lender that one or more a whole multiple of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, Borrower at the office of the Swing Line Lender listed by crediting the account of the Borrower at such office with such proceeds in Section 14.2Dollars.
(b) The Borrower agrees that, upon the request to the Agent by the Swing Line Lender made on or prior to the Closing Date or in Dollars connection with any assignment pursuant to subsection 11.6, to evidence the Swing Line Loans the Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-3, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate "SWING LINE NOTE"), payable to the order of the Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by such to the Borrower, with interest thereon as prescribed in subsection 4.7. The Swing Line Lender pursuant Note shall (a) be dated the Closing Date, (b) be stated to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, mature on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) Date and (iic) provide for the date and amount payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.7.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, discretion may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf) ), request each Multi-Currency Lender Revolving Credit Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate Loan) ABR Loan in an amount equal to such Multi-Currency Revolving Credit Lender’s 's Revolving Credit Commitment Percentage of the principal amount of all of the Swing Line Loans (the “Refunded Swing Line Loans”"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given. Unless any ; PROVIDED that the provisions of this subsection shall not affect the obligations of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available Borrower to the prepay Swing Line Lender for its own account at Loans in accordance with the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds provisions of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loansubsection 4.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Multi-Currency Commitment from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Multi-Currency Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Multi-Currency Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied satisfied, and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to the making of a Revolving Credit Loan pursuant to paragraph (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment Borrower from time to time during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,0005.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit L/C Obligations exceed the Maximum AvailabilityRevolving Commitments then in effect. Amounts borrowed by the Company Borrower under this Section 4.1 subsection 2.8 may be repaid and, up to through but excluding the last day of the Commitment PeriodInitial Revolving Maturity Date, reborrowed. All Swing Line Loans made to the Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., 2:00 P.M. New York City time (or such later time as may be agreed by the Swing Line Lender in its reasonable discretion), on the requested borrowing date, Borrowing Date specifying the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company Borrower at an office of the Swing Line Lender by crediting the account of the Company designated to the Swing Line Lender Borrower at such office with such proceedsproceeds in Dollars.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and (ii) the date and amount of each payment or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereunder.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), notify the Administrative Agent (which notice shall be promptly provided by the Administrative Agent to the Revolving Lenders) that it requests (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 8.1(f)) each Multi-Currency Lender Revolving Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such ▇▇▇▇▇▇’s Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Revolving Lender’s Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection 2.8 shall not affect the obligations of the Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 3.4(d). Unless any of the events described in paragraph (j) of Section 12.1 Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.8 shall apply) ), each Multi-Currency Revolving Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Revolving Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(c) If the extent that Revolving Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Revolving Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Revolving Lender’s Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to the Borrower), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Revolving Lenders to share in such Swing Line Loans ratably based upon their respective Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay to the Administrative Agent, for the account of the Swing Line Lender, interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Revolving Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Commitments expire or terminate and in Dollars. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Revolving Commitments. In the event that the Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (c), each Revolving Lender shall immediately transfer to the Administrative Agent, for the account of the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to the Administrative Agent, for subsequent delivery to such Revolving Lender, a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Swing Line Lender has received from the Administrative Agent, on behalf of any Multi-Currency Lender Revolving Lender, such Multi-Currency Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from the Borrower or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to the Administrative Agent, for the account of such Revolving Lender, such Revolving Lender’s pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Revolving Lender will return to the Administrative Agent, for the account of the Swing Line Lender Lender, any portion thereof previously distributed by the Swing Line Lender (or the Administrative Agent on its behalf) to it it.
(e) Each Revolving Lender’s obligation to make the Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.8(c) and 2.8(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Revolving 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 condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender; (v) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: First Lien Credit Agreement
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any U.S. Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000100.0 million; provided, however, provided that at no time (after giving effect to the making of such Swing Line Loan Lender shall not make any Swing Line Loans if, after doing so, the Aggregate U.S. Facility Revolving Lender Exposure or the sum of the Aggregate U.S. Borrower Revolving Extensions and the use outstanding principal amount of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit Term Loans would exceed the Maximum Availabilityapplicable limitations set forth in subsection 2.1. Amounts borrowed by the Company any U.S. Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodExtended Maturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company U.S. Borrower Representative (on behalf of any U.S. Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 3:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the U.S. Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000.00 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000.00 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with U.S. Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by wire transfer to the account of such U.S. Borrower specified in Section 14.2such notice.
(b) Each of the U.S. Borrowers agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit I-2,3, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1.4.1; provided that, in the case of any request made in connection with the Third Amendment to Credit Agreement, the Swing Line Lender shall return to the Parent Borrower any Swing Line Note previously delivered to the Swing Line Lender pursuant to Section 4.1(athis subsection 2.4(b), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record Note shall (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Extended Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Lender U.S. Facility Revolving Lender, including the Swing Line Lender, to make a U.S. Facility Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such U.S. Facility Revolving Lender’s U.S. Facility Revolving Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency U.S. Facility Revolving Lender’s U.S. Facility Revolving Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 U.S. Facility Revolving Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency U.S. Facility Revolving Lender shall hereby agrees to make the proceeds of its U.S. Facility Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the U.S. Facility Revolving Commitment of such, or any other, U.S. Facility Revolving Lender at such time. The proceeds of such U.S. Facility Revolving Credit Loans (including, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that U.S. Facility Revolving Commitments shall expire or terminate at any Multitime (other than a termination of the Revolving Credit-1 Commitments on the Non-Currency Extended Maturity Date) while Swing Line Loans are outstanding, each U.S. Facility Revolving Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe U.S. Facility Revolving Commitments, prior to the making of make a U.S. Facility Revolving Credit Loan pursuant to paragraph as an ABR Loan (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which U.S. Facility Revolving Credit Loan was to have been made, shall be deemed a “U.S. Facility Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such U.S. Facility Revolving Lender’s U.S. Facility Revolving Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the U.S. Facility Revolving Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. Facility Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. Facility Revolving Lenders to share in such Swing Line Loans ratably based upon their respective U.S. Facility Revolving Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. Facility Revolving Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. Facility Revolving Credit Loans made as ABR Loans. Each Multi-Currency U.S. Facility Revolving Lender will make the proceeds of any U.S. Facility Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. Facility Revolving Commitments expire or terminate (other than the Non-Extended Maturity Date) and in the currency in which such Swing Line Loans were made. The proceeds of such U.S. Facility Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. Facility Revolving Commitments. In the event that the U.S. Facility Revolving Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. Facility Revolving Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such U.S. Facility 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 the Swing Line Lender has received from any Multi-Currency U.S. Facility Revolving Lender such Multi-Currency U.S. Facility Revolving Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. Facility Revolving Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency U.S. Facility Revolving Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each U.S. Facility Revolving Lender’s obligation to make the U.S. Facility Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by U.S. Facility Revolving Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. Facility Revolving Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. Facility Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000170.0 million; provided, however, provided that at no time (after giving effect to may the making sum of such the then outstanding Swing Line Loan Loans, Revolving Loans and L/C Obligations exceed the lesser of the Commitments then in effect and the use of Borrowing Base as then in effect (based on the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum AvailabilityBorrowing Base Certificate last delivered). Amounts borrowed by the Company any Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company Borrower Representative (on behalf of any Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 3:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by crediting the account of such Borrower at such office with such proceeds in Section 14.2Dollars.
(b) Each Borrower agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated as of the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9.1(f)) request each Multi-Currency Lender Lender, including the Swing Line Lender, to make a Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such Lender’s Commitment Percentage of the principal amount of all Swing Line Loans ( a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency Lender shall hereby agrees to make the proceeds of its Revolving Credit Loan (including, without limitation, any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the Commitment of such, or any other, Lender at such time. The proceeds of such Revolving Credit Loans (including, without limitation, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe Commitments, prior to the making of make a Revolving Credit Loan pursuant to paragraph as an ABR Loan (cwhich Revolving Loan shall be deemed a “Revolving Loan” for all purposes of this Agreement and the other Loan Documents) of Section 4.1, one of the events described in paragraph or (jii) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such Lender’s Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan 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 any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such Lenders to share in such Swing Line Loans ratably based upon their respective Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Revolving Loans made as ABR Loans. Each Multi-Currency Lender will make the proceeds of any Revolving Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Commitments expire or terminate. The proceeds of such Revolving Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the Commitments. In the event that the Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each Lender shall immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated as of the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each Lender’s obligation to make Revolving Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any U.S. Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $30,000,000100.0 million; provided, however, provided that at no time (after giving effect to the making of such Swing Line Loan and the use of the proceeds thereof) may Lender shall not make any Swing Line Loans if, after doing so, the Aggregate Outstanding Multi-Currency U.S. Facility Lender Exposure or Aggregate U.S. Borrowing Extensions of Credit would exceed the Maximum Availabilityapplicable limitations set forth in subsection 2.1. Amounts borrowed by the Company any U.S. Borrower under this Section 4.1 subsection 2.4 may be repaid and, up to through but excluding the last day of the Commitment PeriodMaturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as Alternate Base Rate ABR Loans and shall not be entitled to be converted into Eurodollar Eurocurrency Loans. The Company U.S. Borrower Representative (on behalf of any U.S. Borrower) shall give the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 3:00 P.M., New York City time time) on the requested borrowing date, Borrowing Date specifying (1) the identity of the U.S. Borrower and (2) the amount of each the requested Swing Line Loan. The Swing Line Lender , which shall not make any Swing Line Loan be in the period commencing on the first Business Day after it receives written notice from the Administrative Agent a minimum amount of $100,000.00 or any Multi-Currency Lender that one or more whole multiples of the conditions precedent contained $50,000.00 in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loanexcess thereof. The proceeds of each the Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with U.S. Borrower identified in such proceeds.
(b) The Company hereby agrees that each Swing Line Loan made by the Swing Line Lender to the Company pursuant to this Section 4.1 shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, notice at the an office of the Swing Line Lender listed by wire transfer to the account of such U.S. Borrower specified in Section 14.2such notice.
(b) Each of the U.S. Borrowers agrees that, upon the request to the Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in Dollars order to evidence the Swing Line Loans such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in immediately available fundsthe form of Exhibit I-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the aggregate “Swing Line Note”), payable to the order of the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of all the Swing Line Loans made by to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Lender pursuant to Section 4.1(a), which amounts Note shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) be dated the date and amount of each Swing Line Loan made by such Swing Line Lender pursuant to Section 4.1(a) and Closing Date, (ii) be stated to mature on the date Maturity Date and amount (iii) provide for the payment of each payment or prepayment of principal of and interest in accordance with respect to each Swing Line Loan made by the Company to such Swing Line Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure to make any such recording or any error in such recording shall not in any way affect the Payment Obligations of the Company hereundersubsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) and, at any time as there shall be $25,000,000 in aggregate principal amount of a Swing Line Loans Loan outstanding or (ii) on for more than seven Business Days, the last Business Day of any calendar week Swing Line Lender shall, on behalf of the Company Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes the Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) request each Multi-Currency Lender U.S. Facility Lender, including the Swing Line Lender, to make a U.S. Facility Revolving Credit Loan (as an Alternate Base Rate LoanABR Loan in an amount equal to such U.S. Facility Lender’s U.S. Facility Commitment Percentage of the principal amount of all Swing Line Loans (a “Mandatory Revolving Loan Borrowing”) in an amount equal to such Multi-Currency U.S. Facility Lender’s U.S. Facility Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(b). Unless any of the events described in paragraph (j) of Section 12.1 U.S. Facility Commitments shall have occurred expired or terminated (in which event the procedures of paragraph (d) of this Section 4.1 subsection 2.4 shall apply) ), each Multi-Currency U.S. Facility Lender shall hereby agrees to make the proceeds of its U.S. Facility Revolving Credit Loan (including any Eurocurrency Loan) available to the Administrative Agent for the account of the Swing Line Lender for its own account at the office specified for of the Swing Line Lender in Section 14.2 Administrative Agent prior to 1:00 P.M. (12:00 Noon, New York City time) , in funds immediately available on the Business Day next succeeding the date such notice is givengiven notwithstanding (i) that the amount of the Mandatory Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Revolving Loan Borrowing and (v) the amount of the U.S. Facility Commitment of such, or any other, U.S. Facility Lender at such time. The proceeds of such U.S. Facility Revolving Credit Loans (including, any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans. To .
(d) If the extent that U.S. Facility Commitments shall expire or terminate at any Multi-Currency time while Swing Line Loans are outstanding, each U.S. Facility Lender fails to make such payment to shall, at the option of the Swing Line Lender, on demandexercised reasonably, either (i) notwithstanding the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share expiration or termination of such Refunded Swing Line Loan.
(d) Ifthe U.S. Facility Commitments, prior to the making of make a U.S. Facility Revolving Credit Loan pursuant to paragraph as an ABR Loan (c) of Section 4.1, one of the events described in paragraph (j) of Section 12.1 shall have occurred, each Multi-Currency Lender will, on the date such which U.S. Facility Revolving Credit Loan was to have been made, shall be deemed a “U.S. Facility Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the Refunded such Swing Line Loan Loans, in either case in an amount equal to its such U.S. Facility Lender’s U.S. Facility Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the U.S. Facility Commitments of the aggregate principal amount of such Refunded Swing Line LoanLoans; provided that, in the event that any Mandatory Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. Facility Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. Facility Lenders to share in such Swing Line Loans ratably based upon their respective U.S. Facility Commitment Percentages; provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. Facility Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. Facility Revolving Credit Loans made as ABR Loans. Each Multi-Currency U.S. Facility Lender will make the proceeds of any U.S. Facility Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. Facility Commitments expire or terminate and in the currency in which such Swing Line Loans were made. The proceeds of such U.S. Facility Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. Facility Commitments. In the event that the U.S. Facility Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. Facility Lender shall immediately transfer to the Swing Line Lender, in immediately available fundsfunds and in the currency in which such Swing Line Loans were made, the amount of its participationparticipation and upon receipt thereof the Swing Line Lender will deliver to such U.S. Facility Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency U.S. Facility Lender such Multi-Currency U.S. Facility Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) aboveLoan, the Swing Line Lender receives any payment on account thereof (whether directly from any Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. Facility Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency U.S. Facility Lender’s participating interest was outstanding and funded) in like funds as received); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Multi-Currency Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it it.
(f) Each U.S. Facility Lender’s obligation to make the U.S. Facility Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in like funds as accordance with subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such payment is required to be returned by U.S. Facility Lender or any of the Borrowers may have against the Swing Line Lender., any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers;
Appears in 1 contract
Sources: Abl Credit Agreement (HSI IP, Inc.)
Swing Line Commitments. (a) Subject to The Swing Line Bank shall, on the terms and subject to the conditions hereofhereinafter set forth (including Section 4.3), the Swing Line Lender agrees to make swing line loans one or more advances (individually, each such advance being a “Swing Line Loan”; collectively, the “Swing Line Loans”) to the Company in Dollars under the Aggregate Commitment any Floor Plan Borrower from time to time on any Business Day during the Commitment Period period from the Closing Date to the Maturity Date in an aggregate principal amount at any one time outstanding not to exceed $30,000,000; provided, however, that at no any time (after not including Swing Line Overdraft Loans) the aggregate amount of the Swing Line Commitment as such amount may change from time to time. After giving effect to the making all Borrowings of such Swing Line Loan and the use of the proceeds thereof) may the Aggregate Outstanding Multi-Currency Extensions of Credit exceed the Maximum Availability. Amounts borrowed by the Company under this Section 4.1 may be repaid and, up to but excluding the last day of the Commitment Period, reborrowed. All Swing Line Loans shall be made as Alternate Base Rate and Floor Plan Loans requested on any date, the sum of the aggregate principal amount of all outstanding Floor Plan Loans and Swing Line Loans (but excluding Swing Line Overdraft Loans) shall not be entitled to be converted into Eurodollar Loans. The Company shall give exceed the Swing Line Lender irrevocable notice, which notice shall be in substantially the form of Exhibit H-3 (a “Swing Line Total Floor Plan Loan Request”), and which notice must be received by the Swing Line Lender prior to 1:00 P.M., New York City time on the requested borrowing date, specifying the amount of each requested Swing Line Loan. The Swing Line Lender shall not make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Multi-Currency Lender that one or more of the conditions precedent contained in Section 9.2 shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Line Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 9.2 have been satisfied in connection with the making of any Swing Line Loan. The proceeds of each Swing Line Loan will be made available by the Swing Line Lender to the Company by crediting the account of the Company designated to the Swing Line Lender with such proceedsCommitment.
(b) The Company hereby agrees that each All Swing Line Loan made Loans and all Swing Line Overdraft Loans shall be evidenced by the Swing Line Lender Note, under which advances, repayments and readvances may be made, subject to the Company pursuant to terms and conditions of this Section 4.1 Agreement. In no event whatsoever shall constitute the promise and obligation of the Company to pay to such Swing Line Lender, at the office of the Swing Line Lender listed in Section 14.2, in Dollars and in immediately available funds, the aggregate unpaid principal amount of all Swing Line Loans made by such Swing Line Lender pursuant to Section 4.1(a), which amounts shall be due and payable (whether at maturity or by acceleration) as set forth in this Agreement and, in any event, on the Multi-Currency Termination Date. The Company hereby agrees that the Swing Line Lender is authorized to record (i) the date and amount of each outstanding Swing Line Loan made by such Swing Line Lender pursuant be deemed to Section 4.1(a) and (ii) the date and amount of each payment reduce, modify or prepayment of principal of and interest with respect to each Swing Line Loan made by the Company to such Swing Line affect any Lender, in the books and records of such Swing Line Lender and in such manner as is reasonable and customary for it and a certificate of an officer of such Swing Line Lender, setting forth in reasonable detail the information so recorded, shall, in the absence of manifest error, constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that the failure ’s obligation to make any such recording or any error in such recording shall not in any way affect the Payment Obligations Floor Plan Loans based upon its Pro Rata Share of the Company hereunderFloor Plan Loan Commitments.
(c) The Swing Line Lender, at any time in its sole and absolute discretion, may, and (i) at any time as there shall be $25,000,000 in aggregate principal amount of Swing Line Loans outstanding or (ii) on the last Business Day of any calendar week shall, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Multi-Currency Lender to make a Revolving Credit Loan (as an Alternate Base Rate Loan) in an amount equal to such Multi-Currency Lender’s Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given. Unless any of the events described in paragraph (j) of Section 12.1 shall have occurred (in which event the procedures of paragraph (d) of this Section 4.1 shall apply) each Multi-Currency Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for its own account at the office specified for the Swing Line Lender in Section 14.2 prior to 1:00 P.M. (New York City time) in funds immediately available 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 Refunded Swing Line Loans. To the extent that any Multi-Currency Lender fails to make such payment to the Swing Line Lender, on demand, the Company shall substantially concurrently repay such Multi-Currency Lender’s ratable share of such Refunded Swing Line Loan.
(d) If, prior to Immediately upon the making of a Revolving Credit Swing Line Loan pursuant to paragraph (c) of Section 4.1by the Swing Line Bank, one of the events described in paragraph (j) of Section 12.1 Swing Line Bank shall have occurred, each Multi-Currency Lender will, on the date such Revolving Credit Loan was be deemed to have been madesold and transferred to each Lender and each Lender shall be deemed to have purchased and received from the Swing Line Bank, purchase without any further action by any party, an undivided participating interest in the Refunded each Swing Line Loan in an amount equal to its Commitment Percentage of such Refunded Swing Line Loan. Each Multi-Currency Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation.
(e) Whenever, at any time after the Swing Line Lender has received from any Multi-Currency Lender such Multi-Currency Lender’s participating interest in a Refunded Swing Line Loan pursuant to clause (d) above, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Multi-Currency Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Multi-Currency Lender’s participating interest was outstanding and funded) in like funds as receivedPro Rata Share; provided, however, that (a) no Lender shall be required to fund its participation in the event that such payment received by the any Swing Line Loan except as set forth in Section 4.5, and (b) no Lender is required shall be entitled to share in any payments of principal or interest in respect of its participation except, with respect to any participation funded by such Lender, as set forth herein. Such participation shall be returned, such Multi-Currency Lender will return subject to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.terms and conditions of this Agreement
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)