Common use of Non-Funding Lenders Clause in Contracts

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 3 contracts

Samples: Revolving Loan Credit Agreement (XPO, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)

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Non-Funding Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Non-Funding Lender, then the following provisions shall apply for so long as such Lender is a Non-Funding Lender, to the extent permitted by Requirements of Law: (i) The failure Unused Commitment Fee shall cease to accrue on any of any the Revolving Loan Commitments of such Non-Funding Lender pursuant to make any AdvanceSection 1.9(b); (ii) the Commitments, reimbursement outstanding Term Loans and outstanding Revolving Loans of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, be included in determining whether all Lenders or the determination of “Requisite Lenders”, “Supermajority Lenders” Required Lenders have taken or “Lenders directly affected” hereunder) for may take any voting or action hereunder (including any consent rights under or with respect to any Loan Document except with respect to any amendment, waiver or other modification pursuant to Section 9.1); provided that (x) any waiver, amendment or consent modification of the type described in clause (i), (ii) or (iii) of Section 12.2(c)(i)–(iv9.1(a) that directly would apply to such Non-Funding Lender or (y) any waiver, amendment or modification (other than as described in the forgoing clause (x) requiring the consent of all Lenders or each affected Lender) which affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lender disproportionally when compared to other affected Lenders, in each case, shall require the Loans and Commitments held by any consent of such Non-Funding Lender shall be excluded from with respect to the total Loans and Commitments outstanding. At Borrower Representative’s requesteffectiveness of such waiver, amendment or modification; (iii) any payment of principal, interest, fees or other amounts received by the Agent or a Person reasonably acceptable to Agent shall have for the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments account of that Non-Funding Lender for an amount equal (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by Agent from such Non-Funding Lender pursuant to Section 9.11, shall be applied at such time or times as may be determined by the Agent as follows: first, to the principal balance payment of all Loans held any amounts owing by that Non-Funding Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Non-Funding Lender and all accrued interest and fees to the L/C Issuers or Swingline Lender hereunder; third, to cash collateralize any L/C Issuer’s Fronting Exposure with respect thereto through to such Non-Funding Lender in accordance with the date amounts set forth in Section 7.5; fourth, as the Borrower may request (so long as no Default or Event of saleDefault exists), to the funding of any Loan in respect of which that Non-Funding Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Non-Funding Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize any L/C Issuer’s future Fronting Exposure with respect to such Non-Funding Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the amounts set forth in Section 7.5; sixth, to the payment of any amounts owing to the Lenders and the L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to any Credit Party as a result of any judgment of a court of competent jurisdiction obtained by any Credit Party against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; and eighth, to that Non-Funding Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (1) such payment is a payment of the principal amount of any Loans or Letter of Credit Obligations in respect of which such Non-Funding Lender has not fully funded its appropriate share and (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 2.2 were satisfied or waived, such purchase payment shall be applied solely to pay the relevant Loans of, and sale Letter of Credit Obligations owed to, the relevant non-Non-Funding Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Non-Funding Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to clause (iv) below. (iv) if any Swing Loans or Letter of Credit Obligations exist at the time such Lender becomes a Non-Funding Lender then: (A) all or any part of such Non-Funding Lender’s participations in Swing Loans or Letter of Credit Obligations of shall be consummated reallocated among the non-Non-Funding Lenders in accordance with their respective Commitment Percentage but only to the extent that all Revolving Loans and participations in Letter of Credit Obligations and Swing Loans held by such non-Non-Funding Lenders’ do not exceed their respective Revolving Loan Commitments. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Non-Funding Lender arising from that Lender having become a Non-Funding Lender, including any claim of a non-Non-Funding Lender as a result of such non-Non-Funding Lender’s increased exposure following such reallocation; (B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within three (3) Business Days following notice by the Agent (x) first, prepay such Swing Loans in amount equal to such Swingline Lender’s Fronting Exposure and (y) second, cash collateralize for the benefit of the L/C Issuers’ Fronting Exposure (after giving effect to any partial reallocation pursuant to an executed Assignment Agreementclause (A) above) in accordance with the procedures set forth in Section 7.5 for so long as such Letter of Credit Obligations are outstanding; (C) if the Borrower cash collateralizes any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations pursuant to clause (B) above, the Borrower shall not be required to pay any fees to such Non-Funding Lender pursuant to Section 1.9(c) with respect to the portion of such Non-Funding Lender’s Letter of Credit Obligations which is cash collateralized by the Borrower during the period such Non-Funding Lender’s Letter of Credit Obligations are cash collateralized; (D) if the Letter of Credit Obligations of the Non-Funding Lenders are reallocated pursuant to clause (A) above, then the Borrower shall pay to each non-Non-Funding Lender that portion of any such fee otherwise payable to such Non-Funding Lender with respect to such Non-Funding Lender’s participation in Letter of Credit Obligations; and (E) if all or any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations is neither reallocated nor cash collateralized pursuant to clause (A) or (B) above, then, without prejudice to any rights or remedies of the L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 1.9 with respect to such Non-Funding Lender’s Letter of Credit Obligations shall be payable to the L/C Issuer until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized; and (v) so long as any Lender is a Non-Funding Lender, the Swingline Lender shall not be required to fund any Swing Loan and the L/C Issuer shall not be required to issue, amend, extend, renew or increase any Letter of Credit, unless it has received assurances satisfactory to it that it will not have any Fronting Exposure after giving effect thereto. In the event that the Agent, the Borrower, the Swingline Lender and each L/C Issuer each agrees in writing that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by is no longer a Non-Funding Lender and such Non-Funding Lender of notice of replacement pursuant has adequately remedied all matters that caused such Lender to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such a Non-Funding Lender, then the Swing Loans and any Letter of Credit Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Assignment Agreement so executed Lender’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders or take such other actions as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans to be held on a pro rata basis by the replacement Lenders in accordance with their respective Commitment Percentage (without giving effect to clause (iv)(A) above); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender and Agentwas a Non-Funding Lender; provided, shall be effective for purposes further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Non-Funding Lender to a non-Non-Funding Lender will constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 3 contracts

Samples: Credit Agreement (R1 RCM Inc. /DE), Credit Agreement (R1 RCM Inc.), Credit Agreement (R1 RCM Inc.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be, or have its Loans and Commitments, be included in the determination calculation of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affectedMajority Revolving Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In Agreement and in accordance with the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to recording requirements for transfers in Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.19.1.

Appears in 3 contracts

Samples: Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Funding Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv12.2(c)(i)-(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 10.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by Agent, the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 2 contracts

Samples: Revolving Loan Credit Agreement (Visteon Corp), Revolving Loan Credit Agreement (Visteon Corp)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be, or have its Loans and Commitments, be included in the determination calculation of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affectedSupermajority Revolving Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 2 contracts

Samples: Credit Agreement (Thermadyne Holdings Corp /De), Credit Agreement (Handleman Co /Mi/)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “" or "Supermajority Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s 's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 2 contracts

Samples: Credit Agreement (Agway Inc), Credit Agreement (Agway Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders", "Requisite Revolving Lenders" or "Supermajority Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s Borrower's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 2 contracts

Samples: Credit Agreement (Butler International Inc /Md/), Credit Agreement (Insteel Industries Inc)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall in accordance with clause (c) below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of a Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, Breakage Costs, indemnity payments or other amounts) will not have any voting be paid or consent rights under or with respect distributed to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lendersbut will, the Loans and Commitments held by any Non-Funding so long as such Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or is a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each instead be retained by the Administrative Agent in a segregated non-interest bearing account with respect to such Lender (the “Non-Funding Lender agrees that it shallAccount”), at until the Termination Date and will be applied by the Administrative Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance fullest extent permitted by law, to the making of all Loans held payments from time to time in the following order of priority: first, to the payment of any amounts, if any, due and owing by such Non-Funding Lender and all accrued to the Administrative Agent under this Agreement, together with interest and fees with respect thereto through thereon owing at the date Index Rate; second, to the payment of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt any amounts owing by such Non-Funding Lender to the Swing Line Lender under this Agreement; third, to the payment of notice interest due and payable to the Other Lenders, ratably among them in accordance with the amounts of replacement pursuant such interest then due and payable to them; fourth, to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, if as of any Settlement Date the aggregate principal amount of Revolving Credit Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of all Revolving Credit Advances, to repay the Revolving Credit Advances of each such Other Lender in the amount necessary to eliminate such excess, pro rata based on the Revolving Credit Advances of the Other Lenders; sixth, to make any other mandatory reductions of Revolving Credit Advances of the Other Lenders required under Section 2.08, pro rata based on the Revolving Credit Advances of such Other Lenders; seventh, to the ratable payment of other amounts then due and payable to the Other Lenders; and eighth, to pay any interest, Advances or other amounts owing under this Section 10.8(d) and presentation Agreement to such Non-Funding Lender in the order of an Assignment Agreement evidencing an assignment pursuant priority set forth in Section 2.08(b) hereof or as a court of competent jurisdiction may otherwise direct; provided that funds shall be redirected from the Non-Funding Lender Account to this Section 10.8(d)pay amounts owed under clauses second through seventh solely after application of other funds on deposit in the Agent Account and only to the extent that such other funds are insufficient to make such payments. Any funds redirected from the Non-Funding Lender Account to make payments under clauses second through seventh above shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event or a Designated Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause eighth above. (b) Notwithstanding the clause (a) above, the Administrative Agent shall be entitled authorized at any time that any Revolving Commitments remain outstanding, at its sole and absolute discretion, after payment of any amounts owed under clauses first and second of the first sentence of clause (but not obligateda) above, to execute (i) retain amounts in any Non-Funding Lender Account in an amount up to the related Non-Funding Lender’s unfunded Revolving Commitment and (ii) use any portion of such an Assignment Agreement retained amounts to pay such Non-Funding Lender’s funding obligations hereunder. Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, the Administrative Agent shall be authorized to use such the amounts in a Non-Funding Lender’s Non-Funding Lender Account to make such payment on behalf of such Non-Funding Lender. Upon the termination of all Revolving Commitments, any amounts in any Non-Funding Lender Account shall be applied in accordance with the first sentence of clause (a) above. (c) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.14(a), such Assignment Agreement so executed Non-Funding Lender will, to the extent applicable, purchase such portion of outstanding Revolving Credit Advances of the Other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Credit Advances of all of the Lenders to be on a pro rata basis in accordance with their respective Revolving Commitments, whereupon such Lender will cease to be a Non-Funding Lender, provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while such Lender was a Non-Funding Lender; and provided, further, that except to the extent otherwise expressly agreed by the replacement Lender and Agentaffected parties, shall be effective for purposes such notification will not constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 2 contracts

Samples: Credit and Security Agreement (Sungard Data Systems Inc), Credit and Security Agreement (Sungard Capital Corp Ii)

Non-Funding Lenders. The failure of any Non-Funding Lender ------------------- to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such ------------ Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “Supermajority ," or "Requisite Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s Borrower's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 2 contracts

Samples: Credit Agreement (Icon Health & Fitness Inc), Credit Agreement (Icon Health & Fitness Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be, or have its Loans and Commitments, be included in the determination calculation of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affectedRequisite Revolving Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document (except that a Lender that becomes a Non-Funding Lender solely by reason of Section 2.2(c) shall retain its voting or consent rights under or with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingLoan Document). At Borrower RepresentativeBorrower’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 2 contracts

Samples: Credit Agreement (RBC Bearings INC), Credit Agreement (RBC Bearings INC)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth Anything contained herein to the contrarycontrary notwithstanding, a Non-Funding if any Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute defaults (a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover”) in its obligation to fund (a “Funding Default”) any advances on Revolving Credit Loans (in each case, for the purposes of determining Requisite Lenders and Supermajority Lendersa “Defaulted Advance”), the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion then (but shall have no obligationa) to purchase from any Non-Funding Lenderthe extent permitted by applicable law, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or until such Person, all of time as the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees Default Excess with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender shall have been reduced to zero, any prepayment of an Assignment Agreement evidencing an assignment the Revolving Credit Loans pursuant to this Section 10.8(d)2.3 shall, Agent if the Borrower so directs at the time of making such prepayment, be applied to the Revolving Credit Loans of other Lenders as if such Non-Funding Lender had no Revolving Credit Loans outstanding; (b) such Non-Funding Lender’s Revolving Credit Commitment and outstanding Revolving Credit Loans shall be entitled (but not obligated) excluded for purposes of calculating the commitment fee payable to execute such an Assignment Agreement on behalf Lenders pursuant to Section 5.3 in respect of any day during any Default Period with respect to such Non-Funding Lender, and such Non-Funding Lender shall not be entitled to receive any commitment fee pursuant to Section 5.3 for any Default Period with respect to such Assignment Agreement so executed Non-Funding Lender; and (c) the aggregate amount of the Revolving Credit Loans as at any date of determination shall be calculated as if such Non-Funding Lender had funded all Defaulted Loans of such Non-Funding Lender. No Revolving Credit Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.7, performance by the replacement Lender and Agent, Borrower of its obligations hereunder shall not be effective for purposes excused or otherwise modified as a result of any Funding Default or the operation of this Section 10.8(d) 2.7. The rights and remedies against a Non-Funding Lender under this Section 11.12.7 are in addition to other rights and remedies that the Borrower, the Administrative Agent, and Issuing Lender or any other Lender may have against such Non-Funding Lender with respect to any Funding Default.

Appears in 2 contracts

Samples: Five Year Credit Agreement (Jones Apparel Group Inc), Credit Agreement (Jones Apparel Group Inc)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall in accordance with clause (c) below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of such Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, indemnity payments or other amounts) will not have any voting be paid or consent rights under or with respect distributed to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for but will, so long as such Lender is a Non-Funding Lender, instead be retained by the purposes Administrative Agent in a segregated non-interest bearing account (the “Non-Funding Lender Account”), until the Termination Date and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of determining Requisite Lenders payments from time to time in the following order of priority (and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from have no claims against the total Loans and Commitments outstanding. At Borrower Representative’s requestBorrower, the Administrative Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal making such redirected payments): first, to the principal balance payment of all Loans held any amounts, if any, due and owing by such Non-Funding Lender to the Administrative Agent under this Agreement, together with interest thereon owing at the Index Rate; second, to the payment of interest due and all accrued payable to the Other Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; third, to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with respect thereto through the date amounts of salesuch fees then due and payable to them; fourth, if as of any Settlement Date the Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of the total Advances, to repay the Advances of each such purchase Other Lender in the amount necessary to eliminate such excess, pro rata based on the Advances of the Other Lenders; fifth, to make any other mandatory reductions of the Advances of the Other Lenders required under Section 2.08, pro rata based on the Advances of such Other Lenders; sixth, to the ratable payment of other amounts then due and sale payable to be consummated pursuant the Other Lenders; and seventh, to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment pay any interest, Advances or other amounts owing under this Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender in the order of an Assignment Agreement evidencing an assignment pursuant priority set forth in Section 2.08(c) hereof or as a court of competent jurisdiction may otherwise direct; provided that funds shall be redirected from the Non-Funding Lender Account to this Section 10.8(d)pay amounts owed under clauses second through sixth solely after application of other funds on deposit in the Agent Account and only to the extent that such other funds are insufficient to make such payments. Any funds redirected from the Non-Funding Lender Account to make payments under clauses second through sixth above shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause seventh above. (b) Notwithstanding clause (a) above, the Administrative Agent shall be entitled authorized at any time that any Commitments remain outstanding, at its sole and absolute discretion, after payment of any amounts owed under clause first of the first sentence of clause (but not obligateda) above, to execute (i) retain amounts in any Non-Funding Lender Account in an amount up to the related Non-Funding Lender’s unfunded Commitment and (ii) use any portion of such an Assignment Agreement retained amounts to pay such Non-Funding Lender’s funding obligations hereunder. Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, the Administrative Agent shall be authorized to use the amounts in a Non-Funding Lender’s Non-Funding Lender Account to make such payment on behalf of such Non-Funding Lender. Upon the termination of all Commitments, any amounts in any Non-Funding Lender Account shall be applied in accordance with the first sentence of clause (a) above. (c) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.14(a)), such Assignment Agreement so executed Non-Funding Lender shall, to the extent applicable, purchase such portion of outstanding Advances of the Other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Advances of all of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Non-Funding Lender, provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while such Lender was a Non-Funding Lender; and provided, further, that except to the extent otherwise expressly agreed by the replacement Lender and Agentaffected parties, shall be effective for purposes such notification will not constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 2 contracts

Samples: Receivables Funding and Administration Agreement (Cumulus Media Inc), Receivables Funding and Administration Agreement (Cumulus Media Inc)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall in accordance with clause (b) below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of a Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, Breakage Costs, indemnity payments or other amounts) will not have any voting be paid or consent rights under or with respect distributed to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lendersbut will, the Loans and Commitments held by any Non-Funding so long as such Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or is a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each instead be retained by the Administrative Agent in a segregated non-interest bearing account (the “Non-Funding Lender agrees that it shallAccount”), at until the Termination Date and will be applied by the Administrative Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance fullest extent permitted by law, to the making of all Loans held payments from time to time in the following order of priority: first, to the payment of any amounts, if any, due and owing by such Non-Funding Lender and all accrued to the Administrative Agent under this Agreement, together with interest and fees with respect thereto through thereon owing at the date Index Rate; second, to the payment of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt any amounts owing by such Non-Funding Lender to the Swing Line Lender under this Agreement; third, to the payment of notice of replacement pursuant interest due and payable to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d)the Other Lenders, Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf ratably among them in accordance with the amounts of such Non-Funding Lenderinterest then due and payable to them; fourth, to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, if as of any Settlement Date the aggregate principal amount of Revolving Credit Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of all Revolving Credit Advances, to repay the Revolving Credit Advances of each such Assignment Agreement so executed by Other Lender in the replacement Lender and Agentamount necessary to eliminate such excess, shall be effective for purposes of this Section 10.8(d) and Section 11.1.pro rata based on the Revolving Credit

Appears in 2 contracts

Samples: Credit and Security Agreement (Sungard Data Systems Inc), Credit and Security Agreement (SunGard Systems International Inc.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation Revolving Loan or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance Revolving Loan or purchase such participation on such date, but neither any Other Lender nor Administrative Agent shall be responsible for the failure of any Non-Funding Lender to make an Advancea Revolving Loan, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s 's request, Administrative Agent or a Person reasonably acceptable to Administrative Agent shall have the right with Administrative Agent’s 's reasonable consent and in Agent’s sole discretion to purchase (but except that the Administrative Agent shall have no obligationobligation to so purchase) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Administrative Agent’s 's request, sell and assign to Administrative Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1Acceptance.

Appears in 1 contract

Samples: Credit Agreement (Barneys New York Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Revolving Credit Advance, reimbursement of pay any Letter of Credit Obligation or any other payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither Agent nor, other than as expressly set forth herein, any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, ” or “Supermajority Lenders” or “Lenders directly affected” hereunderpursuant to Section 11.2) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding LenderDocument. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender Lenders shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Limited Consent and Amendment No. 4 to Third Amended and Restated Credit Agreement (Wesco International Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan or Export-Related Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be, or have its Loans and Commitments, be included in the determination calculation of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affectedRequisite Revolving Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s request, Agent Agent, in Agent’s sole discretion (but without any obligation), or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at AgentBorrower Representative’s request, sell and assign to Agent or such Person, as the case may be, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Milacron Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation Loan or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance Loan or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an AdvanceLoan, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv12.2(c)(i)-(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower RepresentativeCompany’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d2.1(g) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d2.1(g), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d2.1(g) and Section 11.1.

Appears in 1 contract

Samples: Senior Unsecured Bridge Term Loan Credit Agreement (XPO Logistics, Inc.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Revolving Advance, reimbursement make any payment on account of any Letter of Credit Obligation or any other payment required by it hereunder hereunder, or to fund any purchase of any participation in any Swing Line Loan to be made or purchased funded by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance loan or fund the purchase of any such participation on such date, but neither the Administrative Agent nor, other than as expressly set forth herein, any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advancea loan, fund the purchase of a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Required Lenders” or “Lenders directly affected” hereunderpursuant to Section 14.02) for any voting or consent rights under or with respect to any Loan Document Document, except with respect to that (x) the Commitment of such Non-Funding Lender may not be increased or extended without the consent of such Lender and (y) any amendmentwaiver, amendment or the modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Non-Funding Lender more adversely than other affected Lenders shall require the consent described in Section 12.2(c)(i)–(iv) that directly affects of such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Required Lenders, the Loans and Commitments held by any Non-Funding Lender Lenders shall be excluded from the total Loans and Commitments outstanding. At Borrower Representativethe Administrative Borrower’s requestrequest with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion, the Administrative Agent (or a Person reasonably acceptable to Agent the Administrative Agent) shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Administrative Agent’s request, sell and assign to Administrative Agent (or to such Person), all right, title and interest of the Commitments of that such Non-Funding Lender under the Loan Documents for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1Acceptance.

Appears in 1 contract

Samples: Revolving Credit Agreement (James River Coal CO)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv12.2(c)(i)—(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Non- Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Revolving Loan Credit Agreement (XPO Logistics, Inc.)

Non-Funding Lenders. (a) The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation Revolving Loan or to make any payment required by it hereunder or to purchase under any participation in any Swing Line Loan to be made or purchased by it Document on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such Advance loan or purchase such participation on such datepayment, but and neither Agent nor, other than as expressly set forth herein, any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation loan or make any other required payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(iunder any Loan Document. (b) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, including Section 11.01, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Majority Lenders” or “Lenders directly affectedMajority Revolving Lendershereunderpursuant to Section 11.01) for any voting or consent rights under or with respect to any Loan Document except with respect Document, provided that (A) the Commitment of a Non-Funding Lender may not be increased, (B) the principal of a Non-Funding Lender’s Loans may not be reduced or forgiven, and (C) the interest rate applicable to any amendmentObligations owing to a Non-Funding Lender may not be reduced in such a manner that by its terms affects such Non-Funding Lender more adversely than other Lenders, modification or in each case without the consent described in Section 12.2(c)(i)–(iv) that directly affects of such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Majority Revolving Lenders, the Loans Loans, and Commitments held by any Non-Funding Lender Lenders shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to . (c) Agent shall have be authorized to use all payments received by Agent for the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from benefit of any Non-Funding Lender, and each Lender pursuant to this Agreement to pay in full the Aggregate Excess Funding Amount to the Lenders (other than the Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or Lender). Following such Person, all payment in full of the Commitments of that NonAggregate Excess Funding Amount, Agent shall be entitled to hold such funds as cash collateral in a non-Funding Lender for interest bearing account up to an amount equal to the principal balance of all Loans held by such Non-Funding Lender Lender’s unfunded Revolving Loan Commitment and to use such amount to pay such Non-Funding Lender’s funding obligations hereunder until the Obligations are paid in full in cash, and all accrued interest and fees with respect thereto through the date of sale, Commitments have been terminated. Upon any such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that unfunded obligations owing by a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) becoming due and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d)payable, Agent shall be entitled (but not obligated) authorized to execute use such an Assignment Agreement cash collateral to make such payment on behalf of such Non-Funding Lender. With respect to such Non-Funding Lender’s failure to fund Revolving Loans, any amounts applied by Agent to satisfy such funding shortfalls shall be deemed to constitute a Revolving Loan or amount of the participation required to be funded and, if necessary to effectuate the foregoing, the other Revolving Lenders shall be deemed to have sold, and any such Assignment Agreement so executed Non-Funding Lender shall be deemed to have purchased, Revolving Loans from the other Revolving Lenders, until such time as the aggregate amount of the Revolving Loans are held by the replacement Revolving Lenders in accordance with their Pro Rata Shares of the Aggregate Revolving Loan Commitment. Any amounts owing by a Non-Funding Lender and Agentto Agent which are not paid when due shall accrue interest at the interest rate applicable during such period to Revolving Loans that are Base Rate Loans. In the event that Agent is holding cash collateral of a Non-Funding Lender that cures pursuant to Section 2.21(d) below or ceases to be a Non-Funding Lender pursuant to the definition of Non-Funding Lender, Agent shall return the unused portion of such cash collateral to such Lender. The “Aggregate Excess Funding Amount” of a Non-Funding Lender shall be effective for purposes the aggregate amount of this Section 10.8(d) all unpaid obligations owing by such Lender to Agent and Section 11.1other Lenders under the Loan Documents, including such Lender’s pro rata share of all Revolving Loans.

Appears in 1 contract

Samples: Credit Agreement (Royal Hawaiian Orchards, L.P.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Non- Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “Supermajority ," or "Requisite Tranche A Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s Borrower's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Non- Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Gottschalks Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to ------------------- make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an "Other Lender") of its ------------ obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “" or "Supermajority Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s 's request, Agent or a Person reasonably acceptable to Agent and, so long as no Event of Default has occurred and is continuing, Borrower Representative shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) with Agent's and, so long as no Event of Default has occurred and is continuing, Borrower Representative's consent to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Non- Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (United Road Services Inc)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall not have (pursuant to subsection (c) below), notwithstanding any voting other provisions of this Agreement, any amount paid by the Borrower for the account of a Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, Breakage Costs, indemnity payments or consent rights under or with other amounts) (the Borrower Obligation in respect to of which any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in such amount was paid by the determination Borrower for the account of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any “Applicable Non-Funding Lender shall Borrower Obligation”) will not be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent paid or a Person reasonably acceptable distributed to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any such Non-Funding Lender, and each but will, so long as such Lender is a Non-Funding Lender, instead be retained by the Administrative Agent in a segregated non-interest bearing account with respect to such Lender (the “Non-Funding Lender agrees that it shallAccount”), at until the Termination Date and will be applied by the Administrative Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance fullest extent permitted by law, to the making of all Loans held payments from time to time in the following order of priority: first, to the payment of any amounts, if any, due and owing by such Non-Funding Lender and all accrued to the Administrative Agent under this Agreement, together with interest and fees with respect thereto through thereon owing at the date Index Rate; second, to the payment of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt any amounts owing by such Non-Funding Lender to the Swing Line Lender under this Agreement, third, to the payment of notice interest due and payable to the Other Lenders, ratably among them in accordance with the amounts of replacement pursuant such interest then due and payable to them; fourth, to the payment of Fees then due and payable to the Other Lenders, ratably among them in accordance with the amounts of such Fees then due and payable to them; fifth, if as of any Settlement Date the aggregate principal amount of Revolving Credit Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of all Revolving Credit Advances, to repay the Revolving Credit Advances of each such Other Lender in the amount necessary to eliminate such excess, pro rata based on the Revolving Credit Advances of the Other Lenders; sixth, to make any other mandatory reductions of Revolving Credit Advances of the Other Lenders required under Section 2.8, pro rata based on the Revolving Credit Advances of such Other Lenders; seventh, to make any other mandatory deposits into the LC Collateral Account required under Section 2.8, eighth, to the ratable payment of other amounts then due and payable to the Other Lenders; ninth, to pay any interest, Advances or other amounts owing under this Section 10.8(d) and presentation Agreement to such Non-Funding Lender in the order of an Assignment Agreement evidencing an assignment pursuant priority set forth in Section 2.8 hereof or as a court of competent jurisdiction may otherwise direct and tenth, to pay the remainder to the Borrower; provided that funds shall be redirected from the Non-Funding Lender Account to pay amounts owed under second through eighth solely after application of other funds on deposit in the Agent Account available to make payments under clauses second through eighth above. Any funds redirected from the Non-Funding Lender Account to pay such amounts shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event or Incipient Termination Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause eighth above. For the avoidance of doubt, in the event that any amounts paid by the Borrower for the account of a Non-Funding Lender in respect of any Applicable Non-Funding Borrower Obligation are deposited into the Non-Funding Lender Account, the Borrower shall not again be required to pay amounts in respect of such Applicable Non-Funding Borrower Obligation (unless otherwise expressly required by this Section 10.8(dAgreement). (b) Notwithstanding subsection (a) above, the Administrative Agent shall be entitled authorized at any time that any Revolving Commitments or LC Participation Amounts remain outstanding, at its sole and absolute discretion, after payment of any amounts owed under clause first of the first sentence of subsection (but not obligateda) above, to execute (i) retain amounts in any Non-Funding Lender Account in an amount up to the related Non-Funding Lender’s unfunded Revolving Commitment (including any LC Participation Amount attributable to such an Assignment Agreement Non-Funding Lender) and (ii) use any portion of such retained amounts to pay (on behalf of such Non-Funding Lender) such Non-Funding Lender’s funding obligations in respect of such Revolving Commitments hereunder at the time such funding obligations are owed pursuant to the terms hereof. Upon the termination of all Revolving Commitments and LC Participation Amounts, any amounts in any Non-Funding Lender Account shall be applied in accordance with the first sentence of subsection (a) above. (c) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the Non-Funding Lender Account), such Assignment Agreement so executed Non-Funding Lender will, to the extent applicable, purchase such portion of outstanding Revolving Credit Advances of the Other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Credit Advances of all of the Lenders to be on a pro rata basis in accordance with their respective Revolving Commitments, whereupon such Lender will cease to be a Non-Funding Lender, provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while such Lender was a Non-Funding Lender; and provided, further, that except to the extent otherwise expressly agreed by the replacement Lender and Agentaffected Person(s), shall be effective for purposes such notification will not constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 1 contract

Samples: Credit and Security Agreement (Alpha Natural Resources, Inc.)

Non-Funding Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Non-Funding Lender, then the following provisions shall apply for so long as such Lender is a Non-Funding Lender, to the extent permitted by Requirements of Law: (i) The failure Unused Commitment Fee shall cease to accrue on any of any the Revolving Loan Commitments of such Non-Funding Lender pursuant to make any AdvanceSection 1.9(b); (ii) the Commitments, reimbursement outstanding Term Loans and outstanding Revolving Loans of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, be included in determining whether all Lenders or the determination of “Requisite Lenders”, “Supermajority Lenders” Required Lenders have taken or “Lenders directly affected” hereunder) for may take any voting or action hereunder (including any consent rights under or with respect to any Loan Document except with respect to any amendment, waiver or other modification pursuant to Section 9.01); provided that (x) any waiver, amendment or consent modification of the type described in clause (i), (ii) or (iii) of Section 12.2(c)(i)–(iv9.1(a) that directly would apply to such Non-Funding Lender or (y) any waiver, amendment or modification (other than as described in the forgoing clause (x) requiring the consent of all Lenders or each affected Lender) which affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lender disproportionally when compared to other affected Lenders, in each case, shall require the Loans and Commitments held by any consent of such Non-Funding Lender shall be excluded from with respect to the total Loans and Commitments outstanding. At Borrower Representative’s requesteffectiveness of such waiver, amendment or modification; (iii) any payment of principal, interest, fees or other amounts received by the Agent or a Person reasonably acceptable to Agent shall have for the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments account of that Non-Funding Lender for an amount equal (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by Agent from such Non-Funding Lender pursuant to Section 9.11, shall be applied at such time or times as may be determined by the Agent as follows: first, to the principal balance payment of all Loans held any amounts owing by that Non-Funding Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Non-Funding Lender and all accrued interest and fees to the L/C Issuers or Swingline Lender hereunder; third, to cash collateralize any L/C Issuer’s Fronting Exposure with respect thereto through to such Non-Funding Lender in accordance with the date amounts set forth in Section 7.5; fourth, as the Borrower may request (so long as no Default or Event of saleDefault exists), to the funding of any Loan in respect of which that Non-Funding Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Non-Funding Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize any L/C Issuer’s future Fronting Exposure with respect to such Non-Funding Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the amounts set forth in Section 7.5; sixth, to the payment of any amounts owing to the Lenders and the L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to any Credit Party as a result of any judgment of a court of competent jurisdiction obtained by any Credit Party against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; and eighth, to that Non-Funding Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (1) such payment is a payment of the principal amount of any Loans or Letter of Credit Obligations in respect of which such Non-Funding Lender has not fully funded its appropriate share and (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 2.2 were satisfied or waived, such purchase payment shall be applied solely to pay the relevant Loans of, and sale Letter of Credit Obligations owed to, the relevant non-Non-Funding Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Non-Funding Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to clause (iv) below. (iv) if any Swing Loans or Letter of Credit Obligations exist at the time such Lender becomes a Non-Funding Lender then: (A) all or any part of such Non-Funding Lender’s participations in Swing Loans or Letter of Credit Obligations of shall be consummated reallocated among the non-Non-Funding Lenders in accordance with their respective Commitment Percentage but only to the extent that all Revolving Loans and participations in Letter of Credit Obligations and Swing Loans held by such non-Non-Funding Lenders’ do not exceed their respective Revolving Loan Commitments. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Non-Funding Lender arising from that Lender having become a Non-Funding Lender, including any claim of a non-Non-Funding Lender as a result of such non-Non-Funding Lender’s increased exposure following such reallocation; (B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within three (3) Business Days following notice by the Agent (x) first, prepay such Swing Loans in amount equal to such Swingline Lender’s Fronting Exposure and (y) second, cash collateralize for the benefit of the L/C Issuers’ Fronting Exposure (after giving effect to any partial reallocation pursuant to an executed Assignment Agreementclause (A) above) in accordance with the procedures set forth in Section 7.5 for so long as such Letter of Credit Obligations are outstanding; (C) if the Borrower cash collateralizes any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations pursuant to clause (B) above, the Borrower shall not be required to pay any fees to such Non-Funding Lender pursuant to Section 1.9(c) with respect to the portion of such Non-Funding Lender’s Letter of Credit Obligations which is cash collateralized by the Borrower during the period such Non-Funding Lender’s Letter of Credit Obligations are cash collateralized; (D) if the Letter of Credit Obligations of the Non-Funding Lenders are reallocated pursuant to clause (A) above, then the Borrower shall pay to each non-Non-Funding Lender that portion of any such fee otherwise payable to such Non-Funding Lender with respect to such Non-Funding Lender’s participation in Letter of Credit Obligations; and (E) if all or any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations is neither reallocated nor cash collateralized pursuant to clause (A) or (B) above, then, without prejudice to any rights or remedies of the L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 1.9 with respect to such Non-Funding Lender’s Letter of Credit Obligations shall be payable to the L/C Issuer until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized; and (v) so long as any Lender is a Non-Funding Lender, the Swingline Lender shall not be required to fund any Swing Loan and the L/C Issuer shall not be required to issue, amend, extend, renew or increase any Letter of Credit, unless it has received assurances satisfactory to it that it will not have any Fronting Exposure after giving effect thereto. In the event that the Agent, the Borrower, the Swingline Lender and each L/C Issuer each agrees in writing that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by is no longer a Non-Funding Lender and such Non-Funding Lender of notice of replacement pursuant has adequately remedied all matters that caused such Lender to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such a Non-Funding Lender, then the Swing Loans and any Letter of Credit Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Assignment Agreement so executed Lender’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders or take such other actions as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans to be held on a pro rata basis by the replacement Lenders in accordance with their respective Commitment Percentage (without giving effect to clause (iv)(A) above); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender and Agentwas a Non-Funding Lender; provided, shall be effective for purposes further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Non- Funding Lender to a non-Non-Funding Lender will constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 1 contract

Samples: Credit Agreement (R1 RCM Inc.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor therefor, shall not relieve any other Revolving Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance or other payment or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “Supermajority " or "Requisite Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s the Borrowers' request, Agent or a Person reasonably acceptable to Agent shall have the right right, with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) ), to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Rand Logistics, Inc.)

Non-Funding Lenders. The Each Revolving Lender shall be obligated only to fund its pro-rata share of an Advance subject to the terms and conditions hereof, regardless of the failure of any another Revolving Lender to fund its pro-rata share thereof. Such Non-Funding Lender shall, until such amount is paid to make Revolving Credit Agent (with interest at the Federal Funds Rate), (a) permit Revolving Credit Agent the unconditional and irrevocable right of setoff against any Advanceamounts (including, reimbursement without limitation, payments of principal, interest, and fees, as well as indemnity payments) received by Revolving Credit Agent hereunder for the benefit of any Letter such Defaulting Lender, and (b) if such failure to pay shall continue for a period of Credit Obligation or any payment required by it hereunder or to purchase any participation two Business Days, result in any Swing Line such Defaulting Lender forfeiting any right to vote on any matter that the Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving Lenders or all Lenders are permitted to vote for hereunder (and the calculation of Requisite Lenders, Requisite Revolving Lenders and Supermajority Revolving Lenders shall exclude such Defaulting Lender's interest in the Revolving Loan to be made or purchased by it on the date specified therefor Commitment); provided, however, once such a failure is cured, then such Lender shall, subsequent thereto, have all rights hereunder; provided, further, however, if any Lender shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations fail to make such Advance a payment within the two Business Day period specified in clause (b) above (other than by reason of events beyond the reasonable control of such Lender) two or purchase more times during the term hereof, such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect permanently forfeit its right to any Loan Document or constitute a “Lender” vote hereunder (or be, or have its Loans and Commitments, included in the determination calculation of Requisite Lenders, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Revolving Lenders and Supermajority Lenders, Revolving Lenders shall exclude such Defaulting Lender's interest in the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(dRevolving Loan Commitment), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Layne Christensen Co)

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Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders", "Revolving Lenders" or "Supermajority Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s Borrower's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Infogrames Inc)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan or, Letter of Credit to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an "Other Lender") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Administrative Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Credit Loan Document or constitute a "Lender" or a "Revolving Lender", as applicable (or be, or have its Loans and Commitments, be included in the determination calculation of "Majority Lenders", "Requisite Lenders”, “" or "Supermajority Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Credit Loan Document Document, except with to the extent such consent or voting right is in respect of (i) an increase in the Commitment of such Non-Funding Lender, (ii) a release of all of the Collateral, (iii) the forgiveness or release of any portion of the Obligations held by such Non-Funding Lender, (iv) an extension of the Stated Maturity Date in respect of Obligations owed to any amendmentsuch Non-Funding Lender, modification or consent described in Section 12.2(c)(i)–(iv(v) that directly affects a reduction of the rate of interest on the Loans held by such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s Borrower's request, Administrative Agent or a Person reasonably acceptable to Administrative Agent shall have the right with Administrative Agent’s reasonable 's consent and in Administrative Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Administrative Agent’s 's request, sell and assign to Administrative Agent or such Person, all of the Revolving Loan Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued and unpaid interest and fees Fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Kmart Holding Corp)

Non-Funding Lenders. The failure of (a) If any Revolving Lender is a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) all or a portion of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender’s L/C Obligations (unless such Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to is the reallocation provisions in Sections 2.2(b)(iIssuing Bank that Issued such Letter of Credit) and 2.1(b)(iiireimbursement obligations with respect to Swingline Loans shall, at Agent’s election at any time or upon any Issuing Bank or Swingline Lender’s, as applicable, written request delivered to Agent (whether before or after the occurrence of any Default or Event of Default). , be reallocated to and assumed by the Revolving Lenders that are not Non-Funding Lenders pro rata in accordance with their Pro Rata Shares of the Aggregate Revolving Loan Commitment (calculated as if the Non-Funding Lender’s Pro Rata Share was reduced to zero and each other Revolving Lender’s Pro Rata Share had been increased proportionately), provided that no Revolving Lender shall be reallocated any such amounts or be required to fund any amounts that would cause the sum of its outstanding Revolving Loans, outstanding L/C Obligations, amounts of its participations in Swingline Loans and its pro rata share of unparticipated amounts in Swingline Loans to exceed its Revolving Loan Commitment. (b) Notwithstanding anything set forth herein to the contrary, including Section 11.01, a Non-Funding Lender (other than a Non-Funding Lender after the Conversion Date) shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” or a “Term Revolving Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Majority Lenders”, “Supermajority Majority Revolving Lenders” or “Lenders directly affectedMajority Term Revolving Lendershereunderpursuant to Section 11.01) for any voting or consent rights under or with respect to any Loan Document except with respect Document, provided that (A) the Commitment of a Non-Funding Lender may not be increased, (B) the principal of a Non-Funding Lender’s Loans may not be reduced or forgiven, and (C) the interest rate applicable to any amendmentObligations owing to a Non-Funding Lender may not be reduced in such a manner that by its terms affects such Non-Funding Lender more adversely than other Lenders, modification or in each case without the consent described in Section 12.2(c)(i)–(iv) that directly affects of such Non-Funding Lender. Moreover, for the purposes of determining Requisite Required Lenders and Supermajority Majority Revolving Lenders, Majority Term Revolving Lenders, the Loans Loans, L/C Obligations, and Commitments held by any Non-Funding Lender Lenders shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to . (c) Agent shall have be authorized to use all payments received by Agent for the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from benefit of any Non-Funding Lender, and each Lender pursuant to this Agreement to pay in full the Aggregate Excess Funding Amount to the Lenders (other than the Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or Lender). Following such Person, all payment in full of the Commitments of that NonAggregate Excess Funding Amount, Agent shall be entitled to hold such funds as cash collateral in a non-Funding Lender for interest bearing account up to an amount equal to the principal balance of all Loans held by such Non-Funding Lender Lender’s unfunded Revolving Loan Commitment and Term Revolving Loan Commitment and to use such amount to pay such Non-Funding Lender’s funding obligations hereunder until the Obligations are paid in full in cash, all L/C Obligations have been discharged or cash collateralized and all accrued interest and fees with respect thereto through the date of sale, Commitments have been terminated. Upon any such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that unfunded obligations owing by a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) becoming due and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d)payable, Agent shall be entitled (but not obligated) authorized to execute use such an Assignment Agreement cash collateral to make such payment on behalf of such Non-Funding Lender. With respect to such Non-Funding Lender’s failure to fund Revolving Loans or purchase participations in Letters of Credit or L/C Obligations, any amounts applied by Agent to satisfy such funding shortfalls shall be deemed to constitute a Revolving Loan or amount of the participation required to be funded and, if necessary to effectuate the foregoing, the other Revolving Lenders shall be deemed to have sold, and any such Assignment Agreement so executed Non-Funding Lender shall be deemed to have purchased, Revolving Loans or Letter of Credit participation interests from the other Revolving Lenders, until such time as the aggregate amount of the Revolving Loans and participations in Letters of Credit and L/C Obligations are held by the replacement Revolving Lenders in accordance with their Pro Rata Shares of the Aggregate Revolving Loan Commitment. With respect to such Non-Funding Lender’s failure to fund Term Revolving Loans, any amounts applied by Agent to satisfy such funding shortfalls shall be deemed to constitute a Term Revolving Loan or amount of the participation required to be funded and, if necessary to effectuate the foregoing, the other Term Revolving Lenders shall be deemed to have sold, and such Non-Funding Lender and shall be deemed to have purchased, Term Revolving Loans from the other Term Revolving Lenders, until such time as the aggregate amount of the Term Revolving Loans are held by the Term Revolving Lenders in accordance with their Pro Rata Shares of the Aggregate Term Revolving Loan Commitment. Any amounts owing by a Non-Funding Lender to Agent which are not paid when due shall accrue interest at the interest rate applicable during such period to Revolving Loans that are Base Rate Loans. In the event that Agent is holding cash collateral of a Non-Funding Lender that cures pursuant to Section 2.21(d) below or ceases to be a Non-Funding Lender pursuant to the definition of Non-Funding Lender, Agent shall return the unused portion of such cash collateral to such Lender. The “Aggregate Excess Funding Amount” of a Non-Funding Lender shall be the aggregate amount of (A) all unpaid obligations owing by such Lender to Agent, shall be effective for purposes Issuing Bank, Swingline Lender, and other Lenders under the Loan Documents, including such Lender’s pro rata share of this all Revolving Loans, L/C Obligations, Swingline Loans and Term Revolving Loans, plus, without duplication, (B) all amounts of such Non-Funding Lender’s L/C Obligations and reimbursement obligations with respect to Swingline Loans reallocated to other Lenders pursuant to Section 10.8(d) and Section 11.12.21(a).

Appears in 1 contract

Samples: Credit Agreement (Crimson Wine Group, LTD)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall in accordance with clause (c) below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of a Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, Breakage Costs, indemnity payments or other amounts) will not have any voting be paid or consent rights under or with respect distributed to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lendersbut will, the Loans and Commitments held by any Non-Funding so long as such Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or is a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each instead be retained by the Administrative Agent in a segregated non-interest bearing account with respect to such Lender (the “Non-Funding Lender agrees that it shallAccount”), at until the Termination Date and will be applied by the Administrative Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance fullest extent permitted by law, to the making of all Loans held payments from time to time in the following order of priority: first, to the payment of any amounts, if any, due and owing by such Non-Funding Lender and all accrued to the Administrative Agent under this Agreement, together with interest and fees with respect thereto through thereon owing at the date Index Rate; second, to the payment of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt any amounts owing by such Non-Funding Lender to the Swing Line Lender under this Agreement; third, to the payment of notice interest due and payable to the Other Lenders, ratably among them in accordance with the amounts of replacement pursuant such interest then due and payable to them; fourth, to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, if as of any Settlement Date the aggregate principal amount of Revolving Credit Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of all Revolving Credit Advances, to repay the Revolving Credit Advances of each such Other Lender in the amount necessary to eliminate such excess, pro rata based on the Revolving Credit Advances of the Other Lenders; sixth, to make any other mandatory reductions of Revolving Credit Advances of the Other Lenders required under Section 2.08, pro rata based on the Revolving Credit Advances of such Other Lenders; seventh, to the ratable payment of other amounts then due and payable to the Other Lenders; and eighth, to pay any interest, Advances or other amounts owing under this Section 10.8(d) and presentation Agreement to such Non-Funding Lender in the order of an Assignment Agreement evidencing an assignment pursuant priority set forth in Section 2.08(b) hereof or as a court of competent jurisdiction may otherwise direct; provided that funds shall be redirected from the Non-Funding Lender Account to this Section 10.8(d)pay amounts owed under clauses second through seventh solely after application of other funds on deposit in the Agent Account and only to the extent that such other funds are insufficient to make such payments. Any funds redirected from the Non-Funding Lender Account to make payments under clauses second through seventh above shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event or a Designated Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause eighth above. (b) Notwithstanding the clause (a) above, the Administrative Agent shall be entitled authorized at any time that any Revolving Commitments remain outstanding, at its sole and absolute discretion, after payment of any amounts owed under clauses first and second of the first sentence of clause (but not obligateda) above, to execute (i) retain amounts in any Non-Funding Lender Account in an amount up to the related Non-Funding Lender’s unfunded Revolving Commitment and (ii) use any portion of such an Assignment Agreement retained amounts to pay such Non-Funding Lender’s funding obligations hereunder. Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, the Administrative Agent shall be authorized to use such the amounts in a Non-Funding Lender’s Non-Funding Lender Account to make such payment on behalf of such Non-Funding Lender. Upon the termination of all Revolving Commitments, and any such Assignment Agreement so executed by the replacement amounts in any Non-Funding Lender and Agent, Account shall be applied in accordance with the first sentence of clause (a) above. (c) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective for purposes date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.14(a), such Non-Funding Lender will, to the extent applicable, purchase such portion of this Section 10.8(d) and Section 11.1.outstanding Revolving Credit Advances of the

Appears in 1 contract

Samples: Credit and Security Agreement (Sungard Capital Corp Ii)

Non-Funding Lenders. The failure (1) Each Non-Funding Lender shall be required to provide to the Agent (A) cash or Cash Equivalents in an amount equal to 105% of any such Non-Funding Lender's Proportionate Share of the face amount of outstanding Letters of Credit, and (B) cash or Cash Equivalents in an amount, as shall be determined from time to time by the Agent in its discretion, equal to all other obligations of such Non-Funding Lender to make any Advancethe Agent that are owing or may become owing pursuant to this Agreement, reimbursement including, without limitation, such Non-Funding Lender's obligation to pay its Proportionate Share of any Letter indemnification or expense reimbursement amounts not paid by the Borrowers. Such cash or Cash Equivalents shall be held by Agent in one or more cash collateral accounts which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall be entitled to apply the foregoing cash and Cash Equivalents in accordance with Section 12.11. Notwithstanding anything in this Agreement to the contrary, so long as there is a Non-Funding Lender it shall be within the sole and joint determination of the Issuing Lender as to whether it is agreeable to issue any new Letters of Credit Obligation or extend or renew any payment required expiring Letters of Credit unless the unused Commitments of the other Lenders are sufficient to accommodate such new Letters of Credit or the Borrowers provide any cash collateral in respect of the shortfall. (2) Neither Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or representatives shall be liable to any Lender (including, without limitation, a Non-Funding Lender) for any action taken or omitted to be taken by it hereunder in connection with amounts payable by the Borrowers to a Non-Funding Lender and received and deposited by Agent in a cash collateral account and applied in accordance with the provisions of this Agreement save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction. (3) The Agent shall be entitled to purchase set off any participation in any Swing Line Loan Non-Funding Lender's Proportionate Share of all payments received from the Borrowers against such Non-Funding Lender's obligations to fund payments and Advances required to be made or by it and to purchase participations required to be purchased by it on in each case under this Agreement and the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Loan Documents. The Agent shall be responsible entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by Agent and due to a Non-Funding Lender pursuant to this Agreement which amounts shall be used by Agent (A) first, to reimburse (I) the Agent for any amounts owing to it by the failure Non-Funding Lender pursuant to any Loan Document, and then to reimburse (II) the Issuing Lender for any amounts paid by it that has not been fully reimbursed due to such Non-Funding Lender not funding its Proportionate Share of the applicable Advance, (B) second, to repay any Advances made by a Lender in order to fund a shortfall created by a Non-Funding Lender which repayment shall be in the form of an assignment by each such Lender of such Advance to the Non-Funding Lender, (C) third, (I) first, to cash collateralize all other obligations of such Non-Funding Lender to make an Advancethe Agent owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent in its discretion including, purchase without limitation, such Non-Funding Lender's obligation to pay its Proportionate Share of any indemnification or expense reimbursement amounts not paid by the Borrowers and (II), second, to maintain cash collateral for a participation or make any other payment required hereunder subject Non-Funding Lender's Proportionate Share of reimbursement obligations for Letters of Credit, and (D) fourth, at the Agent's discretion, to fund from time to time the reallocation provisions in Sections 2.2(b)(iNon-Funding Lender's Proportionate Share of Advances under the Revolving Facility. (4) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contraryFor certainty, a Non-Funding Lender shall not will have any no voting or consent rights under or with respect to any matters under this Agreement or other Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding LenderDocuments. Moreover, for the purposes of determining Requisite Lenders and Supermajority LendersAccordingly, the Loans Commitments and Commitments held by the aggregate unpaid principal amount of the Advances owing to any Non-Funding Lender shall be excluded from disregarded in determining Majority Lenders and all Lenders or all affected Lenders. Notwithstanding the total Loans foregoing, should a Non-Funding Lender (i) fund all outstanding Advances that it previously failed to fund and Commitments outstanding. At Borrower Representative’s requestpay all other amounts owing to Agent, and (ii) confirm in writing to the Agent or that there is no reasonable likelihood that it will subsequently again become a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, then such Lender shall thereafter be entitled to vote and each Non-Funding Lender agrees that shall have consent rights in the same manner and fashion as if it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that were not a Non-Funding Lender. During the period in which a Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such is a Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, it shall not be effective for purposes entitled to receive payment of this Section 10.8(d) and Section 11.1standby fees owing hereunder.

Appears in 1 contract

Samples: Credit Agreement (Points International LTD)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder hereunder, or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)require d hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be, or have its Loans and Commitments, be included in the determination calculation of “Requisite Lenders”, “Supermajority Requisite Revolving Lenders” or “Lenders directly affectedSupermajority Revolving Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower RepresentativeBorrower’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto theret o through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Butler International Inc /Md/)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an "Other Lender") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders", or "Supermajority Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s 's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Thermadyne Holdings Corp /De)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall in accordance with clause (c) below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of such Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, indemnity payments or other amounts) will not have any voting be paid or consent rights under or with respect distributed to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for but will, so long as such Lender is a Non-Funding Lender, instead be retained by the purposes Administrative Agent in a segregated non-interest bearing account (the “Non-Funding Lender Account”), until the Termination Date and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of determining Requisite Lenders payments from time to time in the following order of priority (and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from have no claims against the total Loans and Commitments outstanding. At Borrower Representative’s requestBorrower, the Administrative Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal making such redirected payments): first, to the principal balance payment of all Loans held any amounts, if any, due and owing by such Non-Funding Lender to the Administrative Agent under this Agreement, together with interest thereon owing at the Base Rate; second, to the payment of interest due and all accrued payable to the Other Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; third, to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with respect thereto through the date amounts of salesuch fees then due and payable to them; fourth, if as of any Settlement Date the Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of the total Advances, to repay the Advances of each such purchase Other Lender in the amount necessary to eliminate such excess, pro rata based on the Advances of the Other Lenders; fifth, to make any other mandatory reductions of the Advances of the Other Lenders required under Section 2.08, pro rata based on the Advances of such Other Lenders; sixth, to the ratable payment of other amounts then due and sale payable to be consummated pursuant the Other Lenders; and seventh, to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment pay any interest, Advances or other amounts owing under this Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender in the order of an Assignment Agreement evidencing an assignment pursuant priority set forth in Section 2.08(b) hereof or as a court of competent jurisdiction may otherwise direct; provided that funds shall be redirected from the Non-Funding Lender Account to this Section 10.8(d)pay amounts owed under clauses second through sixth solely after application of other funds and only to the extent that such other funds are insufficient to make such payments. Any funds redirected from the Non-Funding Lender Account to make payments under clauses second through sixth above shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause seventh above. (b) Notwithstanding clause (a) above, the Administrative Agent shall be entitled authorized at any time that any Commitments remain outstanding, at its sole and absolute discretion, after payment of any amounts owed under clause first of the first sentence of clause (but not obligateda) above, to execute (i) retain amounts in any Non-Funding Lender Account in an amount up to the related Non-Funding Lender’s unfunded Commitment and (ii) use any portion of such an Assignment Agreement retained amounts to pay such Non-Funding Lender’s funding obligations hereunder. Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, the Administrative Agent shall be authorized to use the amounts in a Non-Funding Lender’s Non-Funding Lender Account to make such payment on behalf of such Non-Funding Lender. Upon the termination of all Commitments, any amounts in any Non-Funding Lender Account shall be applied in accordance with the first sentence of clause (a) above. (c) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.13(a)), such Assignment Agreement so executed Non-Funding Lender shall, to the extent applicable, purchase such portion of outstanding Advances of the Other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Advances of all of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Non-Funding Lender, provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while such Lender was a Non-Funding Lender; and provided, further, that except to the extent otherwise expressly agreed by the replacement Lender and Agentaffected parties, shall be effective for purposes such notification will not constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 1 contract

Samples: Receivables Funding and Administration Agreement (Rexnord Corp)

Non-Funding Lenders. The failure (1) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Non-Funding Lender, then, until such time as such Lender is no longer a Non-Funding Lender, to the extent permitted by Applicable Law: (i) Such Non-Funding Lender's right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 14.19(4). (ii) Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Non-Funding Lender (whether voluntary or mandatory, at maturity, pursuant to Article 12 or otherwise) or received by the Agent from a Non-Funding Lender pursuant to Section 14.20 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Non-Funding Lender to make any Advancethe Agent hereunder; second, reimbursement as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Letter Advance in respect of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each which such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender has failed to make an Advancefund its portion thereof as required by this Agreement, purchase as determined by the Agent; third, if so determined by the Agent and the Borrowers, to be held in a participation or make any other payment required hereunder subject deposit account and released pro rata in order to satisfy such Non-Funding Lender's potential future funding obligations with respect to Advances under this Agreement; fourth, to the reallocation provisions payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender as a result of such Non-Funding Lender 's breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Non-Funding Lender as a result of such Non-Funding Lender's breach of its obligations under this Agreement; and sixth, to such Non-Funding Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Advances in Sections 2.2(b)(irespect of which such Non-Funding Lender has not fully funded its appropriate share, and (B) and 2.1(b)(iii). Notwithstanding anything such Advances were made at a time when the conditions set forth herein in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Funding Lenders on a pro rata basis prior to being applied to the contrarypayment of any Advances of such Non-Funding Lender until such time as all Advances are held by the Lenders pro rata in accordance with the Commitments. Any payments, prepayments or other amounts paid or payable to a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” that are applied (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunderheld) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held pay amounts owed by any a Non-Funding Lender pursuant to this paragraph (ii) shall be excluded from the total Loans deemed paid to and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held redirected by such Non-Funding Lender and the Borrowers obligations to the Non-Funding Lender for such amounts shall be discharged and deemed satisfied for all accrued interest purposes of this Agreement, regardless of the application of such amounts in accordance with this Section, and fees with respect thereto through the date of sale, such purchase and sale each Lender irrevocably consents hereto. (iii) No Non-Funding Lender shall be entitled to be consummated pursuant to an executed Assignment Agreement. In the event receive any fee for any period during which that Lender is a Non-Funding Lender does (and the Borrowers shall not execute an Assignment Agreement pursuant be required to Section 11.1 within five (5) Business Days after receipt by pay any such fee that otherwise would have been required to have been paid to that Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d). (2) If Borrowers and presentation to such the Agent agree in writing that a Lender is no longer a Non-Funding Lender , the Agent will so notify the parties hereto, whereupon as of an Assignment Agreement evidencing an assignment pursuant the effective date specified in such notice and subject to this Section 10.8(d)any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent shall may determine to be entitled (but not obligated) necessary to execute cause the Advances to be held pro rata by the Lenders in accordance with the Commitments, whereupon such an Assignment Agreement on behalf of such Lender will cease to be a Non-Funding Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Non-Funding Lender ; and provided, and any such Assignment Agreement so executed further, that except to the extent otherwise expressly agreed by the replacement affected parties, no change hereunder from Non-Funding Lender to Lender and Agent, shall be effective for purposes nothing in this Agreement will constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from that Lender's having been a Non-Funding Lender.

Appears in 1 contract

Samples: Credit Agreement (Points International LTD)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Revolving Credit Obligation Advance or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”"OTHER LENDER") of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii)hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" or a "Revolving Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of "Requisite Lenders”, “Supermajority " or "Majority Revolving Lenders” or “Lenders directly affected” " hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstandingDocument. At Borrower Representative’s 's request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable 's consent and in Agent’s 's sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s 's request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In Agreement and in accordance with the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to recording requirements for transfers in Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.19.1.

Appears in 1 contract

Samples: Credit Agreement (H&e Finance Corp)

Non-Funding Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Non-Funding Lender, then the following provisions shall apply for so long as such Lender is a Non-Funding Lender, to the extent permitted by Requirements of Law: (i) The failure Unused Commitment Fee shall cease to accrue on any of any the Revolving Loan Commitments of such Non-Funding Lender pursuant to make any AdvanceSection 1.9(b); (ii) the Commitments, reimbursement outstanding Term Loans and outstanding Revolving Loans of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, be included in determining whether all Lenders or the determination of “Requisite Lenders”, “Supermajority Lenders” Required Lenders have taken or “Lenders directly affected” hereunder) for may take any voting or action hereunder (including any consent rights under or with respect to any Loan Document except with respect to any amendment, waiver or other modification pursuant to Section 9.1); provided that (x) any waiver, amendment or consent modification of the type described in clause (i), (ii) or (iii) of Section 12.2(c)(i)–(iv9.1(a) that directly would apply to such Non-Funding Lender or (y) any waiver, amendment or modification (other than as described in the forgoing clause (x) requiring the consent of all Lenders or each affected Lender) which affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lender disproportionally when compared to other affected Lenders, in each case, shall require the Loans and Commitments held by any consent of such Non-Funding Lender shall be excluded from with respect to the total Loans and Commitments outstanding. At Borrower Representative’s requesteffectiveness of such waiver, amendment or modification; (iii) any payment of principal, interest, fees or other amounts received by the Agent or a Person reasonably acceptable to Agent shall have for the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments account of that Non-Funding Lender for an amount equal (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by Agent from such Non-Funding Lender pursuant to Section 9.11, shall be applied at such time or times as may be determined by the Agent as follows: first, to the principal balance payment of all Loans held any amounts owing by that Non-Funding Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Non-Funding Lender and all accrued interest and fees to the L/C Issuers or Swingline Lender hereunder; third, to cash collateralize any L/C Issuer’s Fronting Exposure with respect thereto through to such Non-Funding Lender in accordance with the date amounts set forth in Section 7.5; fourth, as the Borrower may request (so long as no Default or Event of saleDefault exists), to the funding of any Loan in respect of which that Non-Funding Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Non-Funding Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize any L/C Issuer’s future Fronting Exposure with respect to such Non-Funding Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the amounts set forth in Section 7.5; sixth, to the payment of any amounts owing to the Lenders and the L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to any Credit Party as a result of any judgment of a court of competent jurisdiction obtained by any Credit Party against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; and eighth, to that Non-Funding Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (1) such payment is a payment of the principal amount of any Loans or Letter of Credit Obligations in respect of which such Non-Funding Lender has not fully funded its appropriate share and (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 2.2 were satisfied or waived, such purchase payment shall be applied solely to pay the relevant Loans of, and sale Letter of Credit Obligations owed to, the relevant non-Non-Funding Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Non-Funding Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to clause (iv) below. (iv) if any Swing Loans or Letter of Credit Obligations exist at the time such Lender becomes a Non-Funding Lender then: (A) all or any part of such Non-Funding Xxxxxx’s participations in Swing Loans or Letter of Credit Obligations of shall be consummated reallocated among the non-Non-Funding Lenders in accordance with their respective Commitment Percentage but only to the extent that all Revolving Loans and participations in Letter of Credit Obligations and Swing Loans held by such non-Non-Funding Lenders’ do not exceed their respective Revolving Loan Commitments. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Non-Funding Lender arising from that Xxxxxx having become a Non-Funding Lender, including any claim of a non-Non-Funding Lender as a result of such non-Non-Funding Xxxxxx’s increased exposure following such reallocation; (B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within three (3) Business Days following notice by the Agent (x) first, prepay such Swing Loans in amount equal to such Swingline Lender’s Fronting Exposure and (y) second, cash collateralize for the benefit of the L/C Issuers’ Fronting Exposure (after giving effect to any partial reallocation pursuant to an executed Assignment Agreementclause (A) above) in accordance with the procedures set forth in Section 7.5 for so long as such Letter of Credit Obligations are outstanding; (C) if the Borrower cash collateralizes any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations pursuant to clause (B) above, the Borrower shall not be required to pay any fees to such Non-Funding Lender pursuant to Section 1.9(c) with respect to the portion of such Non-Funding Lender’s Letter of Credit Obligations which is cash collateralized by the Borrower during the period such Non-Funding Lender’s Letter of Credit Obligations are cash collateralized; (D) if the Letter of Credit Obligations of the Non-Funding Lenders are reallocated pursuant to clause (A) above, then the Borrower shall pay to each non-Non-Funding Lender that portion of any such fee otherwise payable to such Non-Funding Lender with respect to such Non-Funding Xxxxxx’s participation in Letter of Credit Obligations; and (E) if all or any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations is neither reallocated nor cash collateralized pursuant to clause (A) or (B) above, then, without prejudice to any rights or remedies of the L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 1.9 with respect to such Non-Funding Lender’s Letter of Credit Obligations shall be payable to the L/C Issuer until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized; and (v) so long as any Lender is a Non-Funding Lender, the Swingline Lender shall not be required to fund any Swing Loan and the L/C Issuer shall not be required to issue, amend, extend, renew or increase any Letter of Credit, unless it has received assurances satisfactory to it that it will not have any Fronting Exposure after giving effect thereto. In the event that the Agent, the Borrower, the Swingline Lender and each L/C Issuer each agrees in writing that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by is no longer a Non-Funding Lender and such Non-Funding Lender of notice of replacement pursuant has adequately remedied all matters that caused such Lender to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such a Non-Funding Lender, then the Swing Loans and any Letter of Credit Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Assignment Agreement so executed Xxxxxx’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders or take such other actions as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans to be held on a pro rata basis by the replacement Lenders in accordance with their respective Commitment Percentage (without giving effect to clause (iv)(A) above); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Xxxxxx was a Non-Funding Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Non-Funding Lender and Agent, shall be effective for purposes to a non-Non-Funding Lender will constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Xxxxxx’s having been a Non-Funding Lender.

Appears in 1 contract

Samples: Credit Agreement (R1 RCM Inc. /DE)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”a) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a "Lender" (or be, or have its Loans and Commitments, be included in the determination calculation of “Requisite "Required Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder") under this Agreement for any voting or ---------------- consent rights under or with respect to any Loan Document except Document; provided, however, that if any Lender making the election under Section 2.4 advances funds to ----------- Borrower on behalf of any Non-Funding Lender in accordance with Section 2.4, such Lenders shall be ----------- permitted to exercise the voting or consent rights of the Non-Funding Lender under the Agreement ratably in accordance with the amount of such funds provided by such Lenders. If any Lender is a Non-Funding Lender and any Lender making the election under Section 2.4 advances funds to Borrower on behalf of a Non-Funding ----------- Lender, then such Non-Funding Lender shall owe such Lenders the amount of such advance plus interest accrued on such advance at the Base Rate plus 2.00% (a "Defaulted Advance Amount") ratably in accordance with the amount of such funds ------------------------ provided by such Lenders. So long as a Non-Funding Lender owes a Defaulted Advance Amount, if the Agent receives a payment or proceeds to be paid to such Non-Funding Lender under this Agreement but for this Section 2.7, then the Agent ----------- shall make such payment to any Lender making the election under Section 2.4 in ----------- an amount not to exceed the Defaulted Advance Amount and any remaining amount shall otherwise be applied pursuant to Section 7.2. The rights and remedies ----------- under this Section 2.7 are in addition to other rights and remedies that the ----------- Lenders, the Agent or any other party may have against such Non-Funding Lender with respect to any amendmentDefaulted Advance Amount. (b) The Agent may, modification or consent described in Section 12.2(c)(i)–(ivat its option, notify any Non-Funding Lender of its intention to replace such Non-Funding Lender with a substitute Lender (a "Substitute Lender") that directly affects for such Non-Funding Lender. Moreover, for If the purposes Agent obtains a ----------------- Substitute Lender within 120 days following notice of determining Requisite Lenders and Supermajority Lendersits intention to do so, the Loans and Commitments held by any applicable Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, must sell and assign its Loans and participations in Letters of Credit to Agent or such Person, all of the Commitments of that Non-Funding Substitute Lender for an amount equal to the principal balance of all Loans and Letters of Credit held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of such sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.

Appears in 1 contract

Samples: Credit Agreement (Oregon Steel Mills Inc)

Non-Funding Lenders. The failure of any (a) If a Lender becomes a Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make then, so long as such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, remains a Non-Funding Lender shall in accordance with clause (c) below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of such Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, indemnity payments or other amounts) will not have any voting be paid or consent rights under or with respect distributed to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for but will, so long as such Lender is a Non-Funding Lender, instead be retained by the purposes Administrative Agent in a segregated non-interest bearing account (the “Non-Funding Lender Account”), until the Termination Date and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of determining Requisite Lenders payments from time to time in the following order of priority (and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from have no claims against the total Loans and Commitments outstanding. At Borrower Representative’s requestBorrower, the Administrative Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal making such redirected payments): first, to the principal balance payment of all Loans held any amounts, if any, due and owing by such Non-Funding Lender to the Administrative Agent under this Agreement, together with interest thereon owing at the Index Rate; second, to the payment of interest due and all accrued payable to the Other Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; third, to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with respect thereto through the date amounts of salesuch fees then due and payable to them; fourth, if as of any Settlement Date the Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of the total Advances, to repay the Advances of each such purchase Other Lender in the amount necessary to eliminate such excess, pro rata based on the Advances of the Other Lenders; fifth, to make any other mandatory reductions of the Advances of the Other Lenders required under Section 2.08, pro rata based on the Advances of such Other Lenders; sixth, to the ratable payment of other amounts then due and sale payable to be consummated pursuant the Other Lenders; and seventh, to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment pay any interest, Advances or other amounts owing under this Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender in the order of an Assignment Agreement evidencing an assignment pursuant priority set forth in Section 2.08(b) hereof or as a court of competent jurisdiction may otherwise direct; provided that funds shall be redirected from the Non-Funding Lender Account to this Section 10.8(d)pay amounts owed under clauses second through sixth solely after application of other funds on deposit in the Agent Account and only to the extent that such other funds are insufficient to make such payments. Any funds redirected from the Non-Funding Lender Account to make payments under clauses second through sixth above shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause seventh above. (b) Notwithstanding clause (a) above, the Administrative Agent shall be entitled authorized at any time that any Commitments remain outstanding, at its sole and absolute discretion, after payment of any amounts owed under clause first of the first sentence of clause (but not obligateda) above, to execute (i) retain amounts in any Non-Funding Lender Account in an amount up to the related Non-Funding Lender’s unfunded Commitment and (ii) use any portion of such an Assignment Agreement retained amounts to pay such Non-Funding Lender’s funding obligations hereunder. Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, the Administrative Agent shall be authorized to use the amounts in a Non-Funding Lender’s Non-Funding Lender Account to make such payment on behalf of such Non-Funding Lender. Upon the termination of all Commitments, any amounts in any Non-Funding Lender Account shall be applied in accordance with the first sentence of clause (a) above. (c) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.13(a)), such Assignment Agreement so executed Non-Funding Lender shall, to the extent applicable, purchase such portion of outstanding Advances of the Other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Advances of all of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Non-Funding Lender, provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while such Lender was a Non-Funding Lender; and provided, further, that except to the extent otherwise expressly agreed by the replacement Lender and Agentaffected parties, shall be effective for purposes such notification will not constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 1 contract

Samples: Receivables Funding and Administration Agreement (RBS Global Inc)

Non-Funding Lenders. The failure (1) Unless prohibited by Applicable Law, each Non-Funding Lender shall be required to provide to the Agent (A) cash or Cash Equivalents in an amount equal to 105% of any such Non- Funding Lender's Proportionate Share of the face amount of outstanding Letters of Credit, and (B) cash or Cash Equivalents in an amount, as shall be determined from time to time by the Agent in its discretion, equal to all other obligations of such Non-Funding Lender to make any Advancethe Agent that are owing or may become owing pursuant to this Agreement, reimbursement including, without limitation, such Non- Funding Lender's obligation to pay its Proportionate Share of any Letter indemnification or expense reimbursement amounts not paid by the Borrower. Such cash or Cash Equivalents shall be held by the Agent in one or more cash collateral accounts which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall be entitled to apply the foregoing cash and Cash Equivalents in accordance with Section 12.11. Notwithstanding anything in this Agreement to the contrary, so long as there is a Non-Funding Lender it shall be within the sole and joint determination of the Issuing Lender as to whether it is agreeable to issue any new Letters of Credit Obligation or extend or renew any payment required expiring Letters of Credit. (2) Neither the Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or representatives shall be liable to any Lender (including, without limitation, a Non-Funding Lender) for any action taken or omitted to be taken by it hereunder in connection with amounts payable by the Borrower to a Non-Funding Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction. (3) The Agent shall be entitled to purchase set off any participation in any Swing Line Loan Non-Funding Lender's Proportionate Share of all payments received from the Borrower against such Non-Funding Lender's obligations to fund payments and Advances required to be made or by it and to purchase participations required to be purchased by it on in each case under this Agreement and the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Loan Documents. The Agent shall be responsible entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Non-Funding Lender pursuant to this Agreement which amounts shall be used by the Agent (A) first, to reimburse (I) the Agent for any amounts owing to it by the failure Non-Funding Lender pursuant to any Loan Document, and then to reimburse (II) the Issuing Lender for any amounts paid by it that has not been fully reimbursed due to such Non- Funding Lender not funding its Proportionate Share of the applicable Advance, (B) second, to repay any Advances made by a Lender in order to fund a shortfall created by a Non-Funding Lender which repayment shall be in the form of an assignment by each such Lender of such Advance to the Non-Funding Lender, (C) third, (I) first, to cash collateralize all other obligations of such Non-Funding Lender to make an Advancethe Agent owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent in its discretion including, purchase without limitation, such Non-Funding Lender's obligation to pay its Proportionate Share of any indemnification or expense reimbursement amounts not paid by the Borrower and (II), second, to maintain cash collateral for a participation or make any other payment required hereunder subject Non-Funding Lender's Proportionate Share of reimbursement obligations for Letters of Credit, and (D) fourth, at the Agent's discretion, to fund from time to time the reallocation provisions in Sections 2.2(b)(iNon- Funding Lender's Proportionate Share of Advances under the Revolving Facility. (4) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contraryFor certainty, a Non-Funding Lender shall not will have any no voting or consent rights under or with respect to any matters under this Agreement or other Loan Document or constitute a “Lender” (or beDocuments. Accordingly, or have its Loans the Commitments and Commitments, included in the determination aggregate unpaid principal amount of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect the Advances owing to any Loan Document except with respect to any amendment, modification or consent described Non- Funding Lender shall be disregarded in Section 12.2(c)(i)–(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Majority Lenders and Supermajority all Lenders or all affected Lenders, the Loans and Commitments held by any . A Non-Funding Lender shall not be excluded from entitled to receive standby fees. For certainty, the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or Lenders shall not be permitted to amend this Agreement in a Person reasonably acceptable to Agent shall manner that would: (i) have the right with Agent’s reasonable consent and in Agent’s sole discretion effect of reducing the rate of interest or fees applicable to the Advances made by a Non- Funding Lender; or (but shall have no obligationii) reducing the principal amount owing to purchase from any a Non-Funding Lender, and unless in each Non-Funding Lender agrees that it shallcase the same reduction also applies to Lenders with the same Commitments. Notwithstanding the foregoing, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that should a Non-Funding Lender does not execute an Assignment Agreement pursuant (i) fund all outstanding Advances that it previously failed to Section 11.1 within five fund and pay all other amounts owing to the Agent and (5ii) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant confirm in writing to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), the Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such that there is no reasonable likelihood that it will subsequently again become a Non-Funding Lender, then such Lender shall thereafter (x) be entitled to vote and any such Assignment Agreement so executed by shall have consent rights and (y) be entitled to receive standby fees, in the replacement Lender same manner and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1fashion as if it were not a Non-Funding Lender.

Appears in 1 contract

Samples: Credit Agreement (Valens Company, Inc.)

Non-Funding Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Non-Funding Lender, then the following provisions shall apply for so long as such Lender is a Non-Funding Lender, to the extent permitted by Requirements of Law: (i) The failure Unused Commitment Fee shall cease to accrue on any of any the Revolving Loan Commitments of such Non-Funding Lender pursuant to make any AdvanceSection 1.9(b); (ii) the Commitments, reimbursement outstanding Term Loans and outstanding Revolving Loans of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, be included in determining whether all Lenders or the determination of “Requisite Lenders”, “Supermajority Lenders” Required Lenders have taken or “Lenders directly affected” hereunder) for may take any voting or action hereunder (including any consent rights under or with respect to any Loan Document except with respect to any amendment, waiver or other modification pursuant to Section 9.01); provided that (x) any waiver, amendment or consent modification of the type described in clause (i), (ii) or (iii) of Section 12.2(c)(i)–(iv9.1(a) that directly would apply to such Non-Funding Lender or (y) any waiver, amendment or modification (other than as described in the forgoing clause (x) requiring the consent of all Lenders or each affected Lender) which affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lender disproportionally when compared to other affected Lenders, in each case, shall require the Loans and Commitments held by any consent of such Non-Funding Lender shall be excluded from with respect to the total Loans and Commitments outstanding. At Borrower Representative’s requesteffectiveness of such waiver, amendment or modification; (iii) any payment of principal, interest, fees or other amounts received by the Agent or a Person reasonably acceptable to Agent shall have for the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments account of that Non-Funding Lender for an amount equal (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by Agent from such Non-Funding Lender pursuant to Section 9.11, shall be applied at such time or times as may be determined by the Agent as follows: first, to the principal balance payment of all Loans held any amounts owing by that Non-Funding Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Non-Funding Lender and all accrued interest and fees to the L/C Issuers or Swingline Lender hereunder; third, to cash collateralize any L/C Issuer’s Fronting Exposure with respect thereto through to such Non-Funding Lender in accordance with the date amounts set forth in Section 7.5; fourth, as the Borrower may request (so long as no Default or Event of saleDefault exists), to the funding of any Loan in respect of which that Non-Funding Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Non-Funding Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize any L/C Issuer’s future Fronting Exposure with respect to such Non-Funding Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the amounts set forth in Section 7.5; sixth, to the payment of any amounts owing to the Lenders and the L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against that Non- US-DOCS\99983253.20 Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to any Credit Party as a result of any judgment of a court of competent jurisdiction obtained by any Credit Party against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; and eighth, to that Non-Funding Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (1) such payment is a payment of the principal amount of any Loans or Letter of Credit Obligations in respect of which such Non-Funding Lender has not fully funded its appropriate share and (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 2.2 were satisfied or waived, such purchase payment shall be applied solely to pay the relevant Loans of, and sale Letter of Credit Obligations owed to, the relevant non-Non-Funding Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Non-Funding Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to clause (iv) below. (iv) if any Swing Loans or Letter of Credit Obligations exist at the time such Lender becomes a Non-Funding Lender then: (A) all or any part of such Non-Funding Lender’s participations in Swing Loans or Letter of Credit Obligations of shall be consummated reallocated among the non-Non-Funding Lenders in accordance with their respective Commitment Percentage but only to the extent that all Revolving Loans and participations in Letter of Credit Obligations and Swing Loans held by such non-Non-Funding Lenders’ do not exceed their respective Revolving Loan Commitments. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Non-Funding Lender arising from that Lender having become a Non-Funding Lender, including any claim of a non-Non-Funding Lender as a result of such non-Non-Funding Lender’s increased exposure following such reallocation; (B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within three (3) Business Days following notice by the Agent (x) first, prepay such Swing Loans in amount equal to such Swingline Lender’s Fronting Exposure and (y) second, cash collateralize for the benefit of the L/C Issuers’ Fronting Exposure (after giving effect to any partial reallocation pursuant to an executed Assignment Agreementclause (A) above) in accordance with the procedures set forth in Section 7.5 for so long as such Letter of Credit Obligations are outstanding; (C) if the Borrower cash collateralizes any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations pursuant to clause (B) above, the Borrower shall not be required to pay any fees to such Non-Funding Lender pursuant to Section 1.9(c) with respect to the portion of such Non-Funding Lender’s Letter of Credit Obligations which is cash collateralized by the Borrower during the period such Non-Funding Lender’s Letter of Credit Obligations are cash collateralized; (D) if the Letter of Credit Obligations of the Non-Funding Lenders are reallocated pursuant to clause (A) above, then the Borrower shall pay to each non- US-DOCS\99983253.20 Non-Funding Lender that portion of any such fee otherwise payable to such Non-Funding Lender with respect to such Non-Funding Lender’s participation in Letter of Credit Obligations; and (E) if all or any portion of such Non-Funding Lender’s participation in Letter of Credit Obligations is neither reallocated nor cash collateralized pursuant to clause (A) or (B) above, then, without prejudice to any rights or remedies of the L/C Issuer or any other Lender hereunder, all letter of credit fees payable under Section 1.9 with respect to such Non-Funding Lender’s Letter of Credit Obligations shall be payable to the L/C Issuer until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized; and (v) so long as any Lender is a Non-Funding Lender, the Swingline Lender shall not be required to fund any Swing Loan and the L/C Issuer shall not be required to issue, amend, extend, renew or increase any Letter of Credit, unless it has received assurances satisfactory to it that it will not have any Fronting Exposure after giving effect thereto. In the event that the Agent, the Borrower, the Swingline Lender and each L/C Issuer each agrees in writing that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by is no longer a Non-Funding Lender and such Non-Funding Lender of notice of replacement pursuant has adequately remedied all matters that caused such Lender to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such a Non-Funding Lender, then the Swing Loans and any Letter of Credit Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Assignment Agreement so executed Lender’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders or take such other actions as Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans to be held on a pro rata basis by the replacement Lenders in accordance with their respective Commitment Percentage (without giving effect to clause (iv)(A) above); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender and Agentwas a Non-Funding Lender; provided, shall be effective for purposes further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Non-Funding Lender to a non-Non-Funding Lender will constitute a waiver or release of this Section 10.8(d) and Section 11.1any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Appears in 1 contract

Samples: Credit Agreement (R1 RCM Inc.)

Non-Funding Lenders. The failure of any Non-Funding Lender to make any Advance, reimbursement of any Letter of Credit Obligation or any payment required by it hereunder or to purchase any participation in any Swing Line Loan to be made or purchased by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance or purchase such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance, purchase a participation or make any other payment required hereunder subject to the reallocation provisions in Sections 2.2(b)(i) and 2.1(b)(iii). Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Requisite Lenders”, “Supermajority Lenders” or “Lenders directly affected” hereunder) for any voting or consent rights under or with respect to any Loan Document except with respect to any amendment, modification or consent described in Section 12.2(c)(i)–(iv12.2(c)(i)-(iv) that directly affects such Non-Funding Lender. Moreover, for the purposes of determining Requisite Lenders and Supermajority Lenders, the Loans and Commitments held by any Non-Funding Lender shall be excluded from the total Loans and Commitments outstanding. At Borrower Representative’s request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s reasonable consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such Person, all of the Commitments of that Non-Funding Lender for an amount equal to the principal balance of all Loans held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement. In the event that a Non-Funding Lender does not execute an Assignment Agreement pursuant to Section 11.1 within five (5) Business Days after receipt by such Non-Funding Lender of notice of replacement pursuant to this Section 10.8(d) and presentation to such Non-Funding Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 10.8(d), Agent shall be entitled (but not obligated) to execute such an Assignment Agreement on behalf of such Non-Funding Lender, and any such Assignment Agreement so executed by the replacement Lender and Agent, shall be effective for purposes of this Section 10.8(d) and Section 11.1.this

Appears in 1 contract

Samples: Credit Agreement (XPO Logistics, Inc.)

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