Appears in 36 contracts

Samples: Credit and Security Agreement (Treace Medical Concepts, Inc.), Credit and Security Agreement (Term Loan) (Treace Medical Concepts, Inc.), Credit and Security Agreement (Alpha Teknova, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each ~~Borrower~~ Credit Party under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 9 contracts

Samples: Credit, Security and Guaranty Agreement (Term Loan) (Xtant Medical Holdings, Inc.), Credit, Security and Guaranty Agreement (Revolving Loan) (Xtant Medical Holdings, Inc.), Credit, Security and Guaranty Agreement (Term Loan) (Xtant Medical Holdings, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. In the absence of receipt by Agent of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers and each Lender hereby authorize and direct Agent, subject to the provisions of Section 10.7 hereof, to apply such prepayment against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, pro rata against all outstanding Term Loans in accordance with the provisions of Section 2.1(a)(iii); provided, however, that if Agent at any time determines that payments received by Agent were in respect of a mandatory prepayment event, Agent shall apply such payments in accordance with the provisions of Section 2.1(a)(ii) and shall be fully authorized by Borrowers and each Lender to make corresponding Loan Account reversals in respect thereof. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 8 contracts

Samples: Credit and Security Agreement (Mohawk Group Holdings, Inc.), Credit and Security Agreement (Mohawk Group Holdings, Inc.), Credit and Security Agreement (Mohawk Group Holdings, Inc.)

Appears in 4 contracts

Samples: Credit and Security Agreement (Targanta Therapeutics Corp.), Credit and Security Agreement (Derma Sciences, Inc.), Credit and Security Agreement (NxStage Medical, Inc.)

Appears in 3 contracts

Samples: Credit Agreement (Reliant Pharmaceuticals, Inc.), Credit Agreement (Reliant Pharmaceuticals, Inc.), Credit Agreement (Reliant Pharmaceuticals, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each ~~Borrower~~ Credit Party under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ~~ninety (90)~~ [***] days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 3 contracts

Samples: Credit, Security and Guaranty Agreement (Revolving Loan) (Cerus Corp), Credit, Security and Guaranty Agreement (Term Loan) (Cerus Corp), Credit, Security and Guaranty Agreement (Cerus Corp)

Appears in 3 contracts

Samples: Credit and Security Agreement (American Retirement Corp), Credit and Security Agreement (American Retirement Corp), Credit and Security Agreement (American Retirement Corp)

Appears in 2 contracts

Samples: Credit and Security Agreement (Accuray Inc), Credit and Security Agreement (Accuray Inc)

Appears in 2 contracts

Samples: Credit and Security Agreement (BioTrove, Inc.), Credit and Security Agreement (Monogram Biosciences, Inc.)

Appears in 2 contracts

Samples: Credit and Security Agreement (Steel Connect, Inc.), Credit and Security Agreement (Celadon Group Inc)

Appears in 2 contracts

Samples: Credit, Security and Guaranty Agreement (Shimmick Corp), Credit, Security and Guaranty Agreement (Shimmick Corp)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by ~~Agent~~ Lender on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by ~~Agent~~ Lender on the next succeeding Business Day. In the absence of receipt by Lender of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers hereby authorize and direct Lender, subject to the provisions of Section 10.5 hereof, to apply such prepayment against Term Loan in accordance with the provisions of Section 2.1(c); provided, however, that if Lender at any time determines that payments received by Lender were in respect of a mandatory prepayment event, Lender shall apply such payments in accordance with the provisions of Section 2.1(b) and shall be fully authorized by Borrowers and Lender to make corresponding Loan Account reversals in respect thereof. (b) ~~Agent~~ Lender shall maintain a loan account (the “Loan Account”) on its books to record ~~Loans~~ the Term Loan and other extensions of credit made by ~~the Lenders~~ Lender hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with ~~Agent~~Lender’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in ~~Agent~~Lender’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to ~~Agent~~ Lender by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. ~~Agent~~ Lender shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but ~~neither Agent nor any~~ Lender shall not have any liability if ~~Agent~~ Lender shall fail to provide any such statement). Unless any Borrower notifies ~~Agent~~ Lender of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 2 contracts

Samples: Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.), Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.)

Appears in 2 contracts

Samples: Credit and Security Agreement (Aziyo Biologics, Inc.), Credit and Security Agreement (Aziyo Biologics, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim, in lawful money of the United States and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 ~~Noon~~ p.m. (Eastern time) on any date shall be deemed received by Administrative Agent on such date, and any payments received in the Payment Account ~~at or~~ after 12:00 ~~Noon~~ p.m. (Eastern time) on any date shall be deemed received by Administrative Agent on the next succeeding Business Day. In the absence of receipt by Administrative Agent of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers and each Lender hereby authorize and direct Administrative Agent, subject to the provisions of Section 10.6 hereof, to apply such prepayment against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, pro rata against all outstanding Term Loans in accordance with the provisions of Section 2.1(a)(iii); provided, that if Administrative Agent at any time determines that payments received by Administrative Agent were in respect of a mandatory prepayment event, Administrative Agent shall apply such payments in accordance with the provisions of Section 2.1(a)(ii) and shall be fully authorized by Borrowers and each Lender to make corresponding Loan Account Reversals in respect thereof. (b) Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Administrative Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Administrative Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Administrative Agent nor any Lender shall have any liability if Administrative Agent shall fail to provide any such statement). Unless any Borrower notifies Administrative Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 2 contracts

Samples: Credit and Security Agreement (BioHorizons, Inc.), Credit and Security Agreement (BioHorizons, Inc.)

Appears in 2 contracts

Samples: Credit and Security Agreement (BioTelemetry, Inc.), Credit and Security Agreement (CardioNet, Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Collegiate Pacific Inc), Credit Agreement (Collegiate Pacific Inc)

Appears in 2 contracts

Samples: Credit and Security Agreement (Aptevo Therapeutics Inc.), Credit and Security Agreement (Aptevo Therapeutics Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Sagent Holding Co.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (b) During any Third Party Agent Retention Period, Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. During any Non-Third Party Agent Retention Period, the Borrower Representative shall maintain such Loan Account and shall make such books, records and Loan Account available to Agent and the Lenders upon request therefrom. Upon the request of any Third Party Agent upon the commencement of any Third Party Agent Retention Period, the Borrower Representative shall share such books and records of the Borrower Representative and such Loan Account with the Third Party Agent, and with respect to any discrepancies between the books, records or Loan Account of the Borrower Representative, on the one hand, and the books, records or Loan Account of any Lender, the Agent or the Third Party Agent, on the other hand, the books, records and Loan Account of such Lender, Agent or Third Party Agent shall ~~endeavor to provide Borrowers with a monthly statement regarding~~ govern and control in the ~~Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent~~ absence of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected thereinmanifest error.

Appears in 1 contract

Samples: Credit and Security Agreement (Endologix Inc /De/)

Appears in 1 contract

Samples: Credit and Security Agreement (AlerisLife Inc.)

Appears in 1 contract

Samples: Credit Agreement (Valera Pharmaceuticals Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each Borrower~~ the Borrowers under any Financing Document, including payments of principal and interest ~~made hereunder and pursuant to any other Financing Document~~on the Second Lien Term Notes, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. The Borrowers shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on ~~any~~ the date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Daywhen due. (b) Administrative Agent shall maintain a loan account (the ~~“Loan Account”~~"LOAN ACCOUNT") on its books to record Second Lien Term Loans ~~and other extensions of credit made by the Lenders hereunder or under any other Financing Document,~~ and all payments ~~thereon~~ made on the Second Lien Term Loans by ~~each Borrower~~the Borrowers. All entries in the Loan Account shall be made in accordance with Administrative Agent’s 's customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Administrative Agent~~’s books and records at any time~~ 's most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent by ~~each Borrower~~ the Borrowers absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any Borrower’s~~ the Borrowers' duty to pay all amounts owing hereunder or under any other Financing Document. Unless the Funds Administrator notifies Administrative Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon the Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Comsys It Partners Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Term Loan) (EndoChoice Holdings, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Seracare Life Sciences Inc)

Appears in 1 contract

Samples: Credit Agreement (Obagi Medical Products, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each Borrower~~ the Borrowers under any Financing Document, including payments of principal and interest made ~~hereunder and pursuant to any other Financing Document~~hereunder, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. The Borrowers shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on ~~any~~ the date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Daywhen due. (b) Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Second Lien Term Loans ~~and other extensions of credit made by the Lenders hereunder or under any other Financing Document,~~ and all payments ~~thereon~~ made on the Second Lien Term Loans by ~~each Borrower~~the Borrowers. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Administrative Agent’s ~~books and records at any time~~ most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent by ~~each Borrower~~ the Borrowers absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any Borrower’s~~ the Borrowers’ duty to pay all amounts owing hereunder or under any other Financing Document. Unless the Funds Administrator notifies Administrative Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon the Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Comsys It Partners Inc)

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Rubicon Technologies, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Alphatec Holdings, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each Borrower~~ the Borrowers under any Financing Document, including payments of principal and interest ~~made hereunder and pursuant to any other Financing Document~~on the Notes, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. The Borrowers shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on ~~any~~ the date when due. Notwithstanding anything to the contrary set forth in this Section 2.6(a), Agent shall be ~~deemed received by~~ permitted, in its sole discretion, but subject to the limitations set forth in Section 2.2(a)(ii), to satisfy any of the payment obligations described in this Section 2.6(a) through the making of Agent ~~on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day~~Advances. (b) Agent shall maintain a loan account (the ~~“Loan Account”~~"LOAN ACCOUNT") on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by ~~each Borrower~~the Borrowers. All entries in the Loan Account shall be made in accordance with Agent’s 's customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Agent~~’s books and records at any time~~ 's most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Agent by ~~each Borrower~~ the Borrowers absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any Borrower’s~~ the Borrowers' duty to pay all amounts owing hereunder or under any other Financing Document. ~~Agent shall endeavor to provide Borrowers with a monthly statement regarding~~ Unless the ~~Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower~~ Funds Administrator notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon the Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit Agreement (Comsys It Partners Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Dynacq Healthcare Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each ~~Borrower~~ Credit Party under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day.. MidCap / Xtant / Credit, Security and Guaranty Agreement (Term Loan) (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Term Loan) (Xtant Medical Holdings, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Aar Corp)

Appears in 1 contract

Samples: Credit and Security Agreement (Insulet Corp)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to and due and payable on 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 (it also being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. In the absence of receipt by Agent of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan or Additional Term Loan, Borrowers and each Lender hereby authorize and direct Agent, subject to the provisions of Section 2.11(d) and Section 10.7 hereof, to apply such prepayment against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, first pro rata against all outstanding Term Loans in accordance with the provisions of Section 2.1(a)(iii); and second, pro rata against all outstanding Additional Term Loans in accordance with the provisions of Section 2.1(d)(iii); provided, however, that if Agent at any time determines that payments received by Agent were in respect of a mandatory prepayment event, Agent shall apply such payments first in accordance with the provisions of Section 2.1(a)(ii); and second, in accordance with the provisions of Section 2.1(d)(ii) and shall be fully authorized by Borrowers and each Lender to make corresponding Loan Account reversals in respect thereof. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit and Security Agreement (Staffing 360 Solutions, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Ellipse Technologies Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each ~~Borrower~~ Credit Party under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise MidCap / Cerus / Credit, Security and Guaranty Agreement (Term Loan) \DC - 036639/000093 - 13934788 v5 202344533 v5 affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ~~ninety (90)~~ [***] days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Term Loan) (Cerus Corp)

General Provisions Regarding Payment; Loan Account. Credit and Security Agreement (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim, in lawful money of the United States and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of ~~calculating financial covenants and~~ computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on any date shall be deemed received by Administrative Agent on such date, and any payments received in the Payment Account ~~at or~~ after ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on any date shall be deemed received by Administrative Agent on the next succeeding Business Day. (b) Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Administrative Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Administrative Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Administrative Agent nor any Lender shall have any liability if Administrative Agent shall fail to provide any such statement). Unless any Borrower notifies Administrative Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein, absent manifest error.

Appears in 1 contract

Samples: Credit and Security Agreement (Ithaka Acquisition Corp)

Appears in 1 contract

Samples: Credit Agreement (Equinox Group Inc)

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Revolving Loan) (Xtant Medical Holdings, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Penwest Pharmaceuticals Co)

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Sarepta Therapeutics, Inc.)

General Provisions Regarding Payment; Loan Account. (aA) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (bB) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit and Security Agreement (Term Loan) (Akoya Biosciences, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Advancis Pharmaceutical Corp)

Appears in 1 contract

Samples: Credit and Security Agreement (Sientra, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Emeritus Corp\wa\)

Appears in 1 contract

Samples: Credit and Security Agreement (Twinlab Consolidated Holdings, Inc.)

General Provisions Regarding Payment; Loan Account. (ai) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (bii) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall ~~endeavor to~~ provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Shimmick Corp)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each Borrower~~ Borrowers under any Financing Document, including payments of principal and interest ~~made hereunder and pursuant to any other Financing Document~~on the Notes, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. Borrowers shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on ~~any~~ the date when due. Notwithstanding anything to the contrary set forth in this Section 2.6(a), Agent shall be ~~deemed received by~~ permitted, in its sole discretion, but subject to the limitations set forth in Section 2.2(a)(ii), to satisfy any of the payment obligations described in this Section 2.6(a) through the making of Agent ~~on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day~~Advances. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by ~~each Borrower~~Borrowers. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Agent’s ~~books and records at any time~~ most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Agent by ~~each Borrower~~ Borrowers absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any Borrower’s duty~~ Borrowers’ duties to pay all amounts owing hereunder or under any other Financing Document. Unless Borrowers notify Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein. (c) In order to efficiently fund and operate their respective businesses and minimize the number of borrowings which they will make under this Agreement and thereby reduce the administrative costs and record keeping required in connection therewith, including the necessity to enter into and maintain separately identified and monitored borrowing facilities, the Borrowers have requested, and the Agent and the Lenders have agreed that, subject to subsection 11.15, (i) all Loans will be advanced to and for the account of the Borrowers on a joint and several basis to the Borrowers’ Account and (ii) all Letters of Credit and Support Agreements will be issued pursuant to requests made by any Borrower on behalf of and for the account of Xxxxxxxx, the Reimbursement Obligations of which shall, notwithstanding the foregoing, be a joint and several obligation of Borrowers. Each Borrower hereby acknowledges that it will be receiving substantial direct and indirect benefit from each Loan made and each Letter of Credit or Support Agreement issued pursuant to this Agreement since the successful operation of each of the Borrowers will be facilitated by the efficiencies achieved by the integrated financial management currently practiced by Borrowers. In addition, Borrowers have informed the Agent that: (i) Holdings, in order to increase the efficiency and productivity of each Borrower, has centralized in itself a cash management system and treasury function which entails, in part, central disbursement and operating accounts in which it provides the working capital needs of each Borrower; and (ii) Since Borrowers are engaged in operations that benefit from financing on an integrated basis and since each Borrower expects to benefit from the continued successful performance of such integrated financial management and in order to best utilize the collective borrowing powers of each Borrower in the most effective and cost efficient manner and to avoid adverse effects on the financial management of each Borrower and the existing back-office practices of the Borrowers, each Borrower has requested that all Revolving Loans and advances be disbursed solely upon the request of Holdings and to bank accounts managed solely by Holdings and that Holdings will manage for the benefit of each Borrower the expenditure and usage of such funds. (iii) In consideration of the foregoing, Xxxxxxxx hereby designates, appoints, authorizes and empowers Holdings as its agent to act as specified herein and in each of the other Financing Documents (including, without limitation, for purposes of making payment to Agent on behalf of itself, of any amounts due or payable by Xxxxxxxx hereunder). Xxxxxxxx hereby irrevocably authorizes and directs Holdings to take such action on its behalf under the respective provisions of this Agreement and the other Financing Documents, and any other instruments, documents and agreements referred to herein or therein, and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required by the respective terms and provisions hereof and thereof, and such other powers as are reasonably incidental thereto, including, without limitation, to take the following actions for and on its behalf: (i) to submit on behalf of Xxxxxxxx Notices of Borrowing to Agent in accordance with the provisions of this Agreement; (ii) to receive on behalf of each Borrower the proceeds of the Loans in accordance with the provisions of this Agreement, such proceeds to be disbursed to or for the account of the applicable Borrower as soon as practicable after its receipt thereof; (iii) to submit on behalf of Xxxxxxxx requests for the issuance of Letters of Credit and Support Agreements in accordance with the provisions of this Agreement; and (iv) to submit on behalf of each Borrower, Compliance Certificates, Excess Cash Flow Certificates, and all other certificates, notices and other communications given or required to be given, hereunder. (d) The administration by Agent and Lenders of this credit facility under this Agreement as a co-borrowing facility in the manner set forth herein is solely as an accommodation to Borrowers and at their request and neither Agent nor any Lender shall incur any liability to any of the Borrowers as a result thereof.

Appears in 1 contract

Samples: Credit Agreement (Williams Controls Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Skilled Healthcare Group, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein. MidCap / HTG / Credit and Security Agreement (Term Loan) \\DC - 036639/000001 - 12092479 . In no event shall the interest charged with respect to the Loans or any other Obligations of any Borrower under any Financing Document exceed the maximum amount permitted under the laws of the State of New York or of any other applicable jurisdiction. Notwithstanding anything to the contrary herein or elsewhere, if at any time the rate of interest payable hereunder or under any Note or other Financing Document (the “Stated Rate”) would exceed the highest rate of interest permitted under any applicable law to be charged (the “Maximum Lawful Rate”), then for so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the Stated Rate is less than the Maximum Lawful Rate, each Borrower shall, to the extent permitted by law, continue to pay interest at the Maximum Lawful Rate until such time as the total interest received is equal to the total interest which would have been received had the Stated Rate been (but for the operation of this provision) the interest rate payable. Thereafter, the interest rate payable shall be the Stated Rate unless and until the Stated Rate again would exceed the Maximum Lawful Rate, in which event this provision shall again apply. In no event shall the total interest received by any Lender exceed the amount which it could lawfully have received had the interest been calculated for the full term hereof at the Maximum Lawful Rate. If, notwithstanding the prior sentence, any Lender has received interest hereunder in excess of the Maximum Lawful Rate, such excess amount shall be applied to the reduction of the principal balance of the Loans or to other amounts (other than interest) payable hereunder, and if no such principal or other amounts are then outstanding, such excess or part thereof remaining shall be paid to Borrowers. In computing interest payable with reference to the Maximum Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made.

Appears in 1 contract

Samples: Credit and Security Agreement (Term Loan) (HTG Molecular Diagnostics, Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day.. In the absence of receipt by Agent of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers and each Lender hereby authorize and direct Agent, subject to the provisions of Section 10.7 hereof, first, to apply such prepayment against then outstanding Revolving Loans and second, if no Revolving Loans are then outstanding, pro rata against all outstanding Term Loan Advances in accordance with the provisions of Section 2.1(a)(iii); provided, however, that if Agent at any time determines that payments received by Agent were in respect of a mandatory prepayment event, Agent shall apply such payments in accordance with the provisions of Section 2.1(a)(ii) and shall be fully authorized by Borrowers and each Lender to make corresponding Loan Account reversals in respect thereof. Midcap / Transfix / A&R Credit Agreement (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit Agreement (Transfix Holdings, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each Borrower~~ the Borrowers under any Financing Document, including payments of principal and interest made ~~hereunder and pursuant to any other Financing Document~~hereunder, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. The Borrowers shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on ~~any~~ the date when due. Notwithstanding anything to the contrary set forth in this Section 2.6(a), Agent shall be ~~deemed received by~~ permitted, in its sole discretion, but subject to the limitations set forth in Section 2.2(a)(ii), to satisfy any of the payment obligations described in this Section 2.6(a) through the making of Agent ~~on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day~~Advances. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by ~~each Borrower~~the Borrowers. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Agent’s ~~books and records at any time~~ most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Agent by ~~each Borrower~~ the Borrowers absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any Borrower’s~~ the Borrowers’ duty to pay all amounts owing hereunder or under any other Financing Document. ~~Agent shall endeavor to provide Borrowers with a monthly statement regarding~~ Unless the ~~Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower~~ Funds Administrator notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon the Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit Agreement (Comsys It Partners Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Williams Industrial Services Group Inc.)

Appears in 1 contract

Samples: Loan and Security Agreement (Rubicon Technologies, Inc.)

General Provisions Regarding Payment; Loan Account. ~~(a)~~ All payments to be made by ~~each Borrower~~ Borrowers under any ~~Financing~~ Credit Document, including payments of principal and interest made hereunder and pursuant to any other ~~Financing~~ Credit Document, and all fees, expenses, indemnities and reimbursements, shall be made without ~~set-off, recoupment~~ set- off or counterclaim, in lawful money of the United States and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). ~~Any~~ Borrowers shall make all payments ~~received~~ in immediately available funds to the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ New York City time) on the date when due, and any payment made thereafter shall be deemed received on the Business Day so made; provided that any such payment made after noon (New York City time) on any ~~date shall~~ Business Day may be deemed ~~received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent~~ made on the next succeeding Business Day. . Any prepayment or repayment of Revolving Loans and any optional or mandatory prepayment of Term Loans shall be accompanied by timely delivery to Administrative Agent of an appropriately completed Payment Notification, as provided in Sections 2.2(b) and (b) c). In the absence of receipt by Administrative Agent of an appropriately completed Payment Notification on or prior to such prepayment, Administrative Agent shall be entitled, notwithstanding any contrary application provisions contained herein, to apply optional prepayments received from Borrowers in such manner as Administrative Agent shall determine in its sole and absolute discretion. Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by ~~the Lenders~~ Xxxxxxx hereunder or under any other ~~Financing~~ Credit Document, and all payments thereon made by ~~each Borrower~~Borrowers. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Administrative Agent’s ~~books and records at any time~~ most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent and each Lender by ~~each Borrower~~ Borrowers absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any Borrower’s~~ Borrowers’ duty to pay all amounts owing hereunder or under any other ~~Financing~~ Credit Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit and Guaranty Agreement

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Pernix Therapeutics Holdings, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Collegiate Pacific Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Ellipse Technologies Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before ~~12:00 Noon~~ 1:00 p.m. (~~Eastern~~ Chicago time) on any date shall be deemed received by Administrative Agent on such date, and any payments received in the Payment Account ~~at or~~ after ~~12:00 Noon~~ 1:00 p.m. (~~Eastern~~ Chicago time) on any date shall be deemed received by Administrative Agent on the next succeeding Business Day. Any optional or mandatory prepayment of Term Loans shall be accompanied by timely delivery to Administrative Agent of an appropriately completed Payment Notification, as provided in Section 2.1(e). In the absence of receipt by Administrative Agent of an appropriately completed Payment Notification on or prior to such prepayment, each Borrower and each Lender hereby fully authorizes and directs Administrative Agent, notwithstanding any contrary application provisions contained herein, to apply payments and/or prepayments received from any Borrower against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, pro rata against all outstanding Term Loans in accordance with the provisions of Section 2.1(e); provided, that (i) if Administrative Agent receives an appropriately completed Payment Notification within two (2) Business Days of the making of any such payment or prepayment, Administrative Agent shall be fully authorized by each Borrower and each Lender to apply such amounts received in accordance with the terms of such Payment Notification and to make any corresponding Loan Account reversals in respect thereof and (ii) if Administrative Agent at any time determines (including, without limitation, by receipt of notice from any Lender or any Credit Party) that payments received by Administrative Agent were in respect of a mandatory prepayment event, Administrative Agent shall apply such payments in accordance with the provisions of Section 2.1(e), and shall be fully authorized by each Borrower and each Lender to make any corresponding Loan Account reversals in respect thereof. (b) Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Administrative Agent’s ~~books and records at any time~~ most recent printout or other written statement, shall be ~~conclusive and binding~~ prima facie evidence of the amounts due and owing to Administrative Agent by each Borrower absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not ~~limit~~ limit, increase or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Administrative Agent of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein, absent manifest error.

Appears in 1 contract

Samples: Credit Agreement (Loud Technologies Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each ~~Borrower~~ Credit Party under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and 257619867 v8 computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected ~~therein~~therein absent manifest error.

Appears in 1 contract

Samples: Credit and Security Agreement (Conformis Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (TELA Bio, Inc.)

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Chicken Soup for the Soul Entertainment, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Orexigen Therapeutics, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Goodman Networks Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Integrated Healthcare Holdings Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Sientra, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Aptevo Therapeutics Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim, in lawful money of the United States and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 ~~Noon~~ p.m. (Eastern time) on any date shall be deemed received by Administrative Agent on such date, and any payments received in the Payment Account ~~at or~~ after 12:00 ~~Noon~~ p.m. (Eastern time) on any date shall be deemed received by Administrative Agent on the next succeeding Business Day. In the absence of receipt by Administrative Agent of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers and each Lender Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the Securities Act of 1933, as amended. hereby authorize and direct Administrative Agent, subject to the provisions of Section 10.6 hereof, to apply such prepayment against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, pro rata against all outstanding Term Loans in accordance with the provisions of Section 2.1(a)(iii); provided, that if Administrative Agent at any time determines that payments received by Administrative Agent were in respect of a mandatory prepayment event, Administrative Agent shall apply such payments in accordance with the provisions of Section 2.1(a)(ii) and shall be fully authorized by Borrowers and each Lender to make corresponding Loan Account Reversals in respect thereof. (b) Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Administrative Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Administrative Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Administrative Agent nor any Lender shall have any liability if Administrative Agent shall fail to provide any such statement). Unless any Borrower notifies Administrative Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit and Security Agreement (BioHorizons, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Ahl Services Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by ~~Agent~~ Lender on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by ~~Agent~~ Lender on the next succeeding Business Day. In the absence of receipt by Lender of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers hereby authorize and direct Lender, subject to the provisions of Section 10.7 hereof, to apply such prepayment against all outstanding Term Loans in accordance with the provisions of Section 2.1(c); provided, however, that if Lender at any time determines that payments received by Lender were in respect of a mandatory prepayment event, Lender shall apply such payments in accordance with the provisions of Section 2.1(b) and shall be fully authorized by Borrowers and Lender to make corresponding Loan Account reversals in respect thereof. (b) ~~Agent~~ Lender shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by ~~the Lenders~~ Lender hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with ~~Agent~~Lender’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in ~~Agent~~Lender’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to ~~Agent~~ Lender by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. ~~Agent~~ Lender shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but ~~neither Agent nor any~~ Lender shall not have any liability if ~~Agent~~ Lender shall fail to provide any such statement). Unless any Borrower notifies ~~Agent~~ Lender of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Kewaunee Scientific Corp /De/)

General Provisions Regarding Payment; Loan Account. ~~(a)~~ All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day~~. (b)~~ . Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.)

Appears in 1 contract

Samples: Dip Credit Agreement

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each~~ Borrower under any ~~Financing~~ DIP Loan Document, including payments of principal and interest ~~made hereunder and pursuant to any other Financing Document~~on the Loans, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. Borrower shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Central time) on ~~any~~ the date when due. Notwithstanding anything to the contrary set forth in this SECTION 2.5(a), Agent shall be ~~deemed received by Agent on such date~~permitted, ~~and~~ in its sole discretion, but subject to the limitations set forth in SECTION 2.1(a)(ii), to satisfy any ~~payments received~~ of the payment obligations described in this SECTION 2.5(a) through the ~~Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day~~making of Protective Advances. (b) Agent shall maintain a loan account (the ~~“Loan Account”~~"LOAN ACCOUNT") on its books to record Loans and other extensions of credit made by the DIP Lenders hereunder or under any other ~~Financing~~ DIP Loan Document, and all payments thereon made by ~~each~~ Borrower. All entries in the Loan Account shall be made in accordance with Agent’s 's customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Agent~~’s books and records at any time~~ 's most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Agent by ~~each~~ Borrower absent ~~manifest error~~clear and convincing evidence to the contrary, subject to review by the Bankruptcy Court; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any~~ Borrower’s 's duty to pay all amounts owing hereunder or under any other ~~Financing~~ DIP Loan Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless ~~any~~ Borrower notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon ~~Borrowers~~ Borrower in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit Agreement (Amcast Industrial Corp)

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day. In the absence of receipt by Agent of a written designation by Borrower Representative, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to a Term Loan, Borrowers and each Lender hereby authorize and direct Agent, subject to the provisions of Section 10.7 hereof, to apply such prepayment against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, pro rata against all outstanding Term Loans in accordance with the provisions of Section 2.1(a)(iii); provided, however, that if Agent at any time determines that payments received by Agent were in respect of a mandatory prepayment event, Agent shall apply such payments in accordance with the provisions of Section 2.1(a)(ii) and shall be fully authorized by Borrowers and each Lender to make corresponding Loan Account reversals in respect thereof. Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. (b) Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Alphatec Holdings, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Skilled Healthcare Group, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Radiologix Inc)

Appears in 1 contract

Samples: Credit Agreement (Medical Properties Trust Inc)

Appears in 1 contract

Samples: Credit, Security and Guaranty Agreement (Shimmick Corp)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by each Borrower under any Financing Document, including payments of principal and interest ~~made hereunder and pursuant to any other Financing Document~~on the Notes, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. Borrowers shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on the date when due. Borrowers hereby authorize Agent, and Agent hereby agrees, subject to the limitations set forth in Section 2.2(a) and so long as all conditions set forth in Section 8.2 have been met, Agent will make Revolving Loans from time to time without request by any ~~date~~ Borrower to permit Borrowers to make timely payments of interest, principal in respect of the Term Loans, fees and other amounts payable under this Agreement. Agent agrees to provide Atlantic with copies of all invoices for third party fees and expenses described in the preceding sentence at least 5 days prior to making the applicable Revolving Loans described in the preceding sentence. In addition, and notwithstanding anything to the contrary set forth in this Section 2.6(a), Agent shall be ~~deemed received by~~ permitted, in its sole discretion, but subject to the limitations set forth in Section 2.2(a)(ii), to satisfy any of the payment obligations described in this Section 2.6(a) through the making of Agent ~~on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Day~~Advances. (b) Agent shall maintain a loan account (the ~~“Loan Account”~~"LOAN ACCOUNT") on its books to record Loans and other extensions of credit made by ~~the~~ Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower. All entries in the Loan Account shall be made in accordance with Agent’s 's customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Agent~~’s books and records at any time~~ 's most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Agent by each Borrower absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s 's duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless any Borrower notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be ~~deemed~~ presumed final, binding and conclusive upon ~~Borrowers~~ such Borrower in all respects as to all matters reflected ~~therein~~therein absent manifest error.

Appears in 1 contract

Samples: Credit Agreement (Atlantic Premium Brands LTD)

General Provisions Regarding Payment; Loan Account. (aA) All payments to be made by ~~each~~ Borrower under any Financing Document, including payments of principal and interest ~~made hereunder and pursuant to any other Financing Document~~on the Notes, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim, in lawful money of the United States of America and in immediately available funds. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made,~~ extension. Borrower shall make all payments in ~~full, on any such extended due date, such payment shall be deemed~~ immediately available funds to ~~have been paid on the original due date without giving effect to any extension thereto). Any payments received in~~ the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on ~~any~~ the date shall be deemed received by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date shall be deemed received by Agent on the next succeeding Business Daywhen due. (bB) Agent shall maintain a loan account (the ~~“Loan Account”~~"LOAN ACCOUNT") on its books to record Loans and other extensions of credit made by the Lenders ~~hereunder or under any other Financing Document~~hereunder, and all payments thereon made by ~~each Borrower~~Borrower or any other Person. All entries in the Loan Account shall be made in accordance with Agent’s 's customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Agent~~’s books and records at any time~~ 's most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Agent by ~~each~~ Borrower ~~absent~~ manifest ~~error~~evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any~~ Borrower’s 's duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless ~~any~~ Borrower notifies Agent in writing of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon ~~Borrowers~~ Borrower in all respects as to all matters reflected therein.

Appears in 1 contract

Samples: Credit Agreement (Beverly Enterprises Inc)

Appears in 1 contract

Samples: Credit and Security Agreement (Staffing 360 Solutions, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Cyberonics Inc)

General Provisions Regarding Payment; Loan Account. (a) All payments to be made by ~~each~~ Borrower under any Financing Document, including payments of principal and interest made hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-~~off, recoupment~~ off or counterclaim. 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 (it being understood and agreed that, solely for purposes of calculating financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto). Any payments received in the Payment Account before ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on any date shall be deemed received by Administrative Agent on such date, and any payments received in the Payment Account ~~at or~~ after ~~12:00 Noon~~ noon (~~Eastern~~ Chicago time) on any date shall be deemed received by Administrative Agent on the next succeeding Business Day. In the absence of receipt by Administrative Agent of an appropriately completed Payment Notification on or prior to such prepayment, Borrower and each Lender hereby fully authorizes and directs Administrative Agent, notwithstanding any contrary application provisions contained herein, to apply payments and/or prepayments received from Borrower against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, against then outstanding WCMA Loans; provided, that (i) if Administrative Agent receives an appropriately completed Payment Notification within two (2) Business Days of the making of any such payment or prepayment, Administrative Agent shall be fully authorized by Borrower and each Lender to apply such amounts received in accordance with the terms of such Payment Notification and to make any corresponding Loan Account reversals in respect thereof and (ii) if Administrative Agent at any time determines that payments received by Administrative Agent were in respect of a mandatory prepayment event, Administrative Agent shall apply such payments in accordance with the provisions of Sections 2.2(c) and (g), and shall be fully authorized by Borrower and each Lender to make any corresponding Loan Account reversals in respect thereof. (b) Administrative Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans (other than WCMA Loans) and other extensions of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by ~~each~~ Borrower. All entries in the Loan Account shall be made in accordance with Administrative Agent’s customary accounting practices as in effect from time to time. The balance in the Loan Account, as recorded in on Administrative Agent’s ~~books and records at any time~~ most recent printout or other written statement, shall be conclusive and binding evidence of the amounts due and owing to Administrative Agent by ~~each~~ Borrower absent ~~manifest error~~clear and convincing evidence to the contrary; ~~provided, however,~~ provided that any failure to so record or any error in so recording shall not limit or otherwise affect ~~any~~ Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement). Unless ~~any~~ Borrower notifies Administrative Agent of any objection to any such printout or statement (specifically describing the basis for such objection) within ~~ninety~~ thirty (9030) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon ~~Borrowers~~ Borrower in all respects as to all matters reflected therein. As to the WCMA Loans, MLPF&S will include in each monthly statement it issues under the WCMA Program information with respect to WCMA Loans and the WCMA Loan Outstandings. Any questions that Borrower may have with respect to such information, and any questions with respect to any other matter in such statements or about or affecting the WCMA Program, shall be directed to MLPF&S. (c) WCMA Lender shall not be responsible, and shall have no liability to Borrower or any other party, for any delay or failure of WCMA Lender to honor any request of Borrower for a WCMA Loan or any other act or omission of WCMA Lender, MLPF&S or any of their Affiliates due to or resulting from any system failure, error or delay in posting or other clerical error, loss of power, fire, Act of God or other cause beyond the reasonable control of WCMA Lender, MLPF&S or any of their Affiliates unless directly arising out of the willful wrongful act or active gross negligence of WCMA Lender. In no event shall WCMA Lender be liable to Borrower or any other party for any incidental or consequential damages arising from any act or omission by WCMA Lender, MLPF&S or any of their Affiliates in connection with the WCMA Line of Credit or this Agreement. (d) All payments required or permitted to be made pursuant to the WCMA Agreement and this Agreement shall be made in lawful money of the United States. Unless otherwise directed by WCMA Lender, payments on account of the WCMA Loan Outstandings may be made by the delivery of checks (other than WCMA Checks), or by means of FTS or wire transfer of funds (other than funds from the WCMA Line of Credit) to MLPF&S for credit to Borrower’s WCMA Account. Notwithstanding anything in the WCMA Agreement to the contrary, Borrower hereby irrevocably authorizes and directs MLPF&S to apply available free credit balances in the WCMA Account to the repayment of the WCMA Loan Outstandings prior to application for any other purpose. Payments to WCMA Lender from funds in the WCMA Account shall be deemed to be made by Borrower upon the same basis and schedule as funds are made available for investment in the Money Accounts in accordance with the terms of the WCMA Agreement. All funds received by WCMA Lender from MLPF&S pursuant to the aforesaid authorization shall be applied by WCMA Lender to repayment of the WCMA Loan Outstandings. The acceptance by or on behalf of WCMA Lender of a check or other payment for a lesser amount than shall be due from Borrower, regardless of any endorsement or statement thereon or transmitted therewith, shall not be deemed an accord and satisfaction or anything other than a payment on account, and WCMA Lender or anyone acting on behalf of WCMA Lender may accept such check or other payment without prejudice to the rights of WCMA Lender to recover the balance actually due or to pursue any other remedy under this Agreement or applicable law for such balance. All checks accepted by or on behalf of WCMA Lender in connection with the WCMA Line of Credit are subject to final collection. (e) In order to minimize the WCMA Loan Outstandings, Borrower hereby irrevocably authorizes and directs MLPF&S, effective on the Activation Date and continuing thereafter so long as this Agreement and the WCMA Agreement shall be in effect: (i) to immediately and prior to application for any other purpose pay to WCMA Lender to the extent of any WCMA Loan Outstandings or other amounts payable by Borrower hereunder all available free credit balances from time to time in the WCMA Account; and (ii) if such available free credit balances are insufficient to pay the WCMA Loan Outstandings and such other amounts, and there are in the WCMA Account at any time any investments in Money Accounts (other than any investments constituting any Minimum Money Accounts Balance under the WCMA Directed Reserve Program), to immediately liquidate such investments and pay to WCMA Lender to the extent of any WCMA Loan Outstandings and such other amounts the available proceeds from the liquidation of any such Money Accounts.

Appears in 1 contract

Samples: Credit Agreement (Sport Supply Group, Inc.)

Common use of General Provisions Regarding Payment; Loan Account Clause in Contracts