Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency. (b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposure; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency).
Appears in 3 contracts
Sources: Credit Agreement (Teradyne, Inc), Credit Agreement (Teradyne, Inc), Credit Agreement (Teradyne, Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding without condition or deduction of taxesfor any defense, recoupment, set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from any Loan Party (or proceeds from any Collateral) following an acceleration of the Obligations under this Agreement or any Event of Default under Section 7.01(h) or (i), to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees and other Obligations then due from the Borrower hereunder, such funds shall be applied as followsapplied, subject to any applicable intercreditor agreement: first, ratably, to all fees and reimbursable expenses of pay any fees, indemnities, or expense reimbursements then due to the Administrative Agent, the Collateral Agent then or any Issuing Bank from the Borrower (other than in connection with obligations in respect of Secured Cash Management Agreements or Secured Hedge Agreements); second, ratably, to pay interest due and payable pursuant in respect of any unreimbursed L/C Disbursements, Protective Advances and Overadvances; third, ratably to any pay principal of the Loan Documentsunreimbursed L/C Disbursements, Protective Advances and Overadvances; secondfourth, ratably, to all reimbursable expenses of pay any fees, indemnities or expense reimbursements then due to the Lenders and all fees and reimbursable expenses from the Borrower (other than in connection with obligations in respect of the Issuing Bank then Secured Cash Management Agreements or Secured Hedge Agreements); fifth, ratably, to pay interest due and payable pursuant in respect of any Revolving Loans; sixth, ratably, to pay principal of Swingline Loans and Revolving Loans (other than Protective Advances and Overadvances) then due from the Borrower hereunder and any of Pari Passu Secured Hedge Obligations and to Cash Collateralize Revolving L/C Exposure in accordance with the Loan Documentsprocedures set forth in Section 2.05(j); seventh, pro rata ratably, to the Lenders payment of any obligations in respect of Secured Cash Management Agreements and the Issuing Bank based on their respective pro rata shares of such fees and expensesany other Secured Hedge Agreements that do not constitute Pari Passu Secured Hedge Obligations; thirdeighth, ratably, to all interest and fees then the payment of any other Secured Obligations due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and feesAgents or any Lender by the Borrower; and fourthninth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to Borrower or as the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC DisbursementsBorrower shall direct.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its Revolving Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect entitled to its Revolving Credit Exposurereceive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in L/C Disbursements and Swingline Loans of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the all such Lenders ratably in accordance with the aggregate principal amount of principal of each such Lender’s respective Revolving Loans and participations in L/C Disbursements and Swingline Loans and accrued interest on their respective thereon vis-à-vis the aggregate principal amount of all such Lenders’ Revolving Credit ExposureLoans and participations in L/C Disbursements and Swingline Loans and the aggregate accrued interest thereon; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection clause (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or (c), 2.18(d) or 2.21, then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 3 contracts
Sources: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 12:00 noon, New York, New York time (or as specified in the next sentence in the case of Loans denominated in an Alternative Currency), on the date when due, in immediately available fundsSame Day Funds, free without set off or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and clear interest on Loans denominated in an Alternative Currency shall be made on the dates specified herein for the account of the respective Lenders to which such payment is owed, in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent to the Borrower by the same time at least one (1) Business Day prior to the date when due. If, for any defensesreason, rights the Borrower is prohibited by law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Amount of set-offthe Alterative Currency payment amount. All payments received by the Administrative Agent (i) after 12:00 p.m., counterclaimNew York City time, in the case of payments in Dollars, or (subject to Section 2.20ii) withholding or deduction after the Applicable Time specified by the Administrative Agent in the case of taxes. Any amounts received after such time on any date payments in an Alternative Currency, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments made by the Borrower hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencycurrency, except as otherwise provided in this paragraph.
(b) If at any time insufficient funds are received by and available Except to the Administrative Agent extent that this Agreement provides for payments to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, allocated to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata a particular Lender or to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; thirdunder a particular Facility, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements.
(c) If if any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result held by it resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall (x) notify the Administrative Agent of such fact, and (y) purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and subparticipations in LC Disbursements and Swingline Loans of other Lenders Lenders, or make such other adjustments as shall be equitable, to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and ; and
(ii) the provisions of this subsection subpart (b) shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.21, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or subparticipations in LC Disbursements or Swingline Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(dc) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the applicable Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of applicable Overnight Rate from time to time in effect.
(d) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(c), 2.5(c) or (d), 2.7(b) or 2.18(c), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currencyand Swingline Loans and to make payments pursuant to Section 9.3(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 9.3(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.3(c).
Appears in 3 contracts
Sources: Credit Agreement (Borgwarner Inc), Credit Agreement (Borgwarner Inc), Credit Agreement (Borgwarner Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 10.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Except as provided in Section 2.05(e), all payments hereunder under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 3 contracts
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC), Credit Agreement (Realogy Holdings Corp.), Credit Agreement (NRT Settlement Services of Missouri LLC)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or any Affiliate thereof of the Borrower (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 3 contracts
Sources: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. (i) in the case of payments denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agent’s Foreign Currency Payment Office for such currency, in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent at its Domestic Payment Office or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s Foreign Currency Payment OfficeOffice for such currency, except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments hereunder shall to be made by such Borrower hereunder in such currency shall instead be made when due in Dollars or, in an amount equal to the extent expressly set forth in Section 2.22Dollar Amount (as of the date of repayment) of such payment due, it being the applicable Alternative Currencyintention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) [Intentionally omitted].
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(di) Unless the Administrative Agent shall have received notice from the relevant Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Banks hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Letters of Credit Loans denominated in an Alternative a Foreign Currency).
(ii) With respect to any payment that the Administrative Agent makes for the account of the Lenders or any Issuing Bank hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such Issuing Bank, in same day funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or Issuing Bank with respect to any amount owing under this clause (e)(ii) shall be conclusive, absent manifest error.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Banks to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its reasonable discretion.
Appears in 3 contracts
Sources: Credit Agreement (Tapestry, Inc.), Credit Agreement (Tapestry, Inc.), Credit Agreement (Tapestry, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except as may be reasonably specified on reasonable notice by the Administrative Agent as it from time to time deems necessary or appropriate with respect to any Alternative Currency, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) from a location in the United States of America prior to 1:00 p.m. 12:00 noon, New York City time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Administrative Agent’s Office, except payments to be made directly to the Issuing Bank applicable L/C Issuer or the Swingline Swing Line Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, dollars or the applicable Alternative Currency, as the case may be.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC L/C Disbursements or Swingline Swing Line Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in L/C Disbursements and Swing Line Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in L/C Disbursements and Swing Line Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in L/C Disbursements and Swing Line Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.25, or (z) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank L/C Issuers hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankL/C Issuers, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders Lender or the Issuing Bankeach L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank such L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of Overnight Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d), 2.07(b) or 2.18(c), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Teradata Corp /De/), Revolving Credit Agreement (Teradata Corp /De/), Revolving Credit Agreement (Teradata Corp /De/)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it them hereunder (whether of principal, interest, fees interest or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20fees, or otherwise) prior to 1:00 2:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaimset‑off, or (subject to Section 2.20) withholding or deduction of taxescounterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections Section 2.17, Section 2.18, Section 2.19, 2.20 and 10.3 Section 11.3 hereof shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each payment to the Administrative Agent of the Issuing Lender’s fees or L/C Participants’ commissions shall be made in like manner, but for the account of the Issuing Lender or the L/C Participants, as the case may be. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses in the order of priority set forth in Section 9.2. If the Administrative Agent then due and payable pursuant receives funds for application to any the Obligations of the Loan Documents; secondParties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to all reimbursable expenses distribute such funds to each of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares in accordance with such Lender’s Pro Rata Share of such fees and expenses; third, outstanding Loans or other Obligations then owing to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC DisbursementsLender.
(c) If any Lender shall, by exercising any right of set-off set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in Letters of Credit Exposure to any assignee or participant, other than to the Borrower Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents Borrowers consent to the foregoing and agreesagree, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off set‑off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Lender hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankLender, as the case may be, the amount or amounts due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankLender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency)compensation.
Appears in 3 contracts
Sources: Credit Agreement (Fortegra Group, LLC), Credit Agreement (Fortegra Group, LLC), Credit Agreement (Tiptree Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, local time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment its offices at its Administrative Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as otherwise expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoherein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder Except as otherwise specified in this Agreement, each such payment (other than principal of and interest on Qualified Global Currency Loans and LC Disbursements denominated in an Alternative Currency, which shall be made in Dollars the applicable Qualified Global Currency or, to the extent expressly set forth except as otherwise specified in Section 2.222.5(e), the applicable Alternative Currency, as the case may be) shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders (or the Issuing Bank any of them) hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, relevant Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate to represent its cost of overnight or short-term funds in the case of Letters of Credit denominated in an Alternative Currencyrelevant currency (which determination shall be conclusive absent manifest error).
(e) If any Lender shall fail to make any payment required to be made by it to the Administrative Agent, the Swingline Lender or any Issuing Lender, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except as provided in Section 2.05(e), the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees interest or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.182.14, 2.19 Section 2.15 or 2.20Section 2.16, or otherwise) prior to 1:00 p.m. 12:00 noon, New York City time, on the date when due, in immediately available funds, free and clear of without any defensesdefense, rights of set-set off, recoupment or counterclaim, or (subject . The Borrower shall make each reimbursement of LC Disbursements required to be made by it prior to the time for such payments set forth in Section 2.20) withholding or deduction of taxes2.05(e). Any amounts received after such the time set forth above or in Section 2.05(e), as applicable, on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to such account of the Payment OfficeAdministrative Agent in the United States as the Administrative Agent may specify from time to time, except that payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18Section 2.14, 2.19Section 2.15, 2.20 Section 2.16 and 10.3 Section 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Credit Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon greater than the proportion received by any other Lender with respect to its Revolving Credit ExposureApplicable Percentage thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, (b) purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of the other Lenders to the extent necessary Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including any payment made by the application Borrower in connection with any extension of funds arising from the existence of a Defaulting LenderMaturity Date in accordance with Section 2.21 or any Commitment Increase in accordance with Section 2.22) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply)Person that is an Eligible Assignee. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the an Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the such Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), Section 2.05(d) or 2.05(e), Section 2.06(b), Section 2.16(e), Section 2.17(d) or Section 9.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the applicable Issuing Bank to satisfy such Lender’s obligations to such Person under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of Letters each of Credit denominated clauses (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Sources: Credit Agreement (MPLX Lp), Credit Agreement (Marathon Petroleum Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding without condition or deduction of taxesfor any defense, recoupment, set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 10.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal of Swingline Loans and unreimbursed L/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC DisbursementsL/C Disbursements then due to such parties, and (iii) third, towards payment of principal then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties; provided that in the event of any conflict between the requirement of this Section 2.18(b) and Section 5.02(b) of the Security Agreement, the provision of Section 5.02(b) of the Security Agreement shall govern.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-set off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or 2.05(e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Goodman Holding CO), Credit Agreement (PQ Systems INC)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 and 10.3 9.05 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or any Affiliate thereof of the Borrower (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Each of the Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 12:00 noon, Local Time (4:00 p.m., New York City time, in the case of Swingline Dollar Loans and 2:00 p.m. London time, in the case of Swingline Foreign Currency Loans), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without set off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits applicable offices set forth in Section 9.01, except payments to be made directly to the Issuing Bank or the any Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of (i) principal or interest in respect of any Loan shall be made in Dollars orthe currency in which such Loan is denominated, (ii) reimbursement obligations shall be made in the currency in which the Letter of Credit in respect of which such reimbursement obligation exists is denominated or (iii) any other amount due hereunder or under another Credit Document shall be made in Dollars. Any payment required to be made by the extent expressly set forth Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall at or before such time, have taken the necessary steps to make such payment in Section 2.22, accordance with the applicable Alternative Currencyregulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders without recourse or warranty from the other Lenders except as contemplated by Section 9.04 in respect of assignments to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by any of the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower Each of the Borrowers consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Applicable Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Applicable Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Applicable Borrower will not make such payment, the Administrative Agent may assume that the Applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Applicable Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, (i) at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit an amount denominated in Dollars) and (ii) the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount (in the case of an Alternative amount denominated in a Foreign Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent or the Issuing Bank to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Sources: Credit Agreement (Scansource Inc), Credit Agreement (Scansource Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except as provided in Section 2.05(e), the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees interest or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.182.14, 2.19 Section 2.15 or 2.20Section 2.16, or otherwise) prior to 1:00 p.m. 12:00 noon, New York City time, on the date when due, in immediately available funds, free and clear of without any defensesdefense, rights of set-set off, recoupment or counterclaim, or (subject . The Borrower shall make each reimbursement of LC Disbursements required to be made by it prior to the time for such payments set forth in Section 2.20) withholding or deduction of taxes2.05(e). Any amounts received after such the time set forth above or in Section 2.05(e), as applicable, on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to such account of the Payment OfficeAdministrative Agent in the United States as the Administrative Agent may specify from time to time, except that payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18Section 2.14, 2.19Section 2.15, 2.20 Section 2.16 and 10.3 Section 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of the other Lenders to the extent necessary Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (for the avoidance of doubt, as in effect from time to time), including any payment made by the application Borrower in accordance with Section 2.19, in connection with any extension of funds arising from the existence of a Defaulting Lender) Maturity Date in accordance with Section 2.21 or any Commitment Increase in accordance with Section 2.22, or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply)Person that is an Eligible Assignee. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the an Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the such Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), Section 2.05(d), Section 2.05(e), Section 2.06(b), Section 2.16(e), Section 2.17(d) or Section 9.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the applicable Issuing Bank to satisfy such Lender’s obligations to such Person under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of Letters each of Credit denominated clauses (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Marathon Petroleum Corp), Revolving Credit Agreement (MPLX Lp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower and each Account Party shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m. the time expressly required hereunder for such payment (or, if no such time is expressly required, prior to 12:00 noon, New York City time, on the date when due), in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at 3▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the an Issuing Bank or the a Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars ordollars. At all times during a Cash Dominion Period, solely for purposes of determining the amount of Loans available for borrowing purposes, checks (in addition to immediately available funds applied pursuant to Section 2.09(f)) from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the extent expressly set forth in Section 2.22Obligations on the Business Day after receipt, the applicable Alternative Currencysubject to actual collection.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements Disbursements, Protective Advances or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements, Protective Advances and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements, Protective Advances and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower or any Account Party pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by the Administrative Agent in respect of any Protective Advance or by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Holdings or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower Each of the Borrowers and each of the Account Parties consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower or such Account Party (as the Borrower case may be) rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower or such Account Party (as the Borrower case may be) in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower or an Account Party prior to the date on which any payment is due to the Administrative Agent from such Borrower or such Account Party (as the case may be) for the account of the Lenders or the an Issuing Bank hereunder that such Borrower or such Account Party (as the Borrower case may be) will not make such payment, the Administrative Agent may assume that such Borrower or such Account Party (as the Borrower case may be) has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may be, the amount or amounts due. In such event, if the relevant Borrower or the relevant Account Party (as the case may be) has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(a)(iii), 2.04(b)(ii), 2.05(d) or (e), 2.06(b) or 2.17(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
(f) Any proceeds of Collateral or any other amounts received by the Administrative Agent in accordance with this Agreement or another Loan Document (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), (B) a mandatory prepayment under Section 2.10 (which shall be applied in accordance with Section 2.10), (C) amounts to be used to cash collateralize LC Exposures, (D) amounts to be applied from the Concentration Account during any Cash Dominion Period (which shall be applied in accordance with Section 2.09(f)) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, shall be applied ratably to the Obligations as follows: first, to pay any fees, indemnities, or expense reimbursements then due to the Administrative Agent, any Issuing Lender or the Swingline Lender under any Loan Document (other than in connection with Secured Swap Obligations, Secured Supply Chain Obligations and Secured Treasury Services Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Loan Parties in respect of Loan Document Obligations, third, to pay interest due in respect of the Protective Advances, fourth, to pay the principal of the Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Protective Advances) or unreimbursed LC Disbursements ratably, sixth, to prepay principal on the Loans (other than the Protective Advances), unreimbursed LC Disbursements and (in an amount not to exceed the Designated Secured Obligations Reserve then in effect) the Designated Secured Swap Obligations and the Designated Secured Treasury Services Obligations ratably, seventh, to the payment of any other Loan Document Obligations due to the Administrative Agent or any Lender from the Loan Parties, eighth, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit, to be held as cash collateral for such Obligations, ninth to the payment of any amounts owing with respect to Secured Swap Obligations and Secured Treasury Services Obligations, and tenth to the payment of any amounts owing with respect to Secured Supply Chain Obligations. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Parent Borrower, or unless an Event of Default has occurred and is continuing, neither the Administrative Agent nor any Lender shall apply any payment that it receives to a Eurodollar Loan, except (x) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (y) in the case event, and only to the extent, that there are no outstanding ABR Loans and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.15. While any Event of Letters Default is continuing, the Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of Credit denominated the Obligations in an Alternative Currency)accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Unless otherwise specified, the Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.18Sections 2.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower Representative by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars (or, to in the extent case of Alternate Currency Loans or Alternate Currency Letters of Credit, except as otherwise expressly set forth in Section 2.22this Agreement, in the applicable Alternative Alternate Currency). Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If Subject to Section 7.02, if at any time insufficient funds are received by and available to the Administrative Agent from the Borrowers to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrowers hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrowers hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, (ii) second, towards payment of principal of Swingline Loans and unreimbursed L/C Disbursements then due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC DisbursementsL/C Disbursements then due to such parties, and (iii) third, towards payment of principal then due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of such Class and accrued interest and fees thereon than the proportion received by any other Lender with respect entitled to its Revolving Credit Exposurereceive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of such Class of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the all such Lenders ratably in accordance with the aggregate principal amount of principal each such Lender’s respective Term Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline Loans of such Class and accrued interest on their respective Revolving Credit Exposurethereon; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection clause (c) shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to . Each of the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower Borrowers consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrowers (or the Borrower Representative on behalf thereof) prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b), 2.05(d) or (e), 2.06, or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m. 3:00 p.m., Local Time at the place of payment, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or such other location as the Payment OfficeAdministrative Agent shall designate from time to time, except payments to be made directly to the Issuing Bank Lender or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 8.5 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to in the extent expressly set forth case of principal of and interest on any Loan denominated in Section 2.22an Alternative Currency, the applicable Alternative Currency, as the case may be. Except as provided in clause (c) below, each payment or prepayment of principal or payment of interest in respect of a Borrowing of Revolving Loans shall be allocated ratably among the parties entitled thereto.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed (including reimbursement of LC Disbursements) then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders without recourse or warranty from the other Lenders except as contemplated by Section 8.4 in respect of assignments to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Lender hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankLender, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankLender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of Overnight Rate in effect from time to time.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.6(b) or 2.17(d), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Five Year Revolving Credit Facility Agreement (Mead Johnson Nutrition Co), Revolving Credit Facility Agreement (Mead Johnson Nutrition Co)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Credit Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20, Disbursements or otherwise) prior to the time required hereunder or under such other Credit Document for such payment or, if no such time is expressly required, prior to 1:00 p.m. p.m., Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Applicable Agent at for the Payment Officeaccount of the applicable Lenders to such account as the Applicable Agent shall from time to time specify in one or more notices delivered to the Company, except that payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein shall be made directly to such parties and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.16, 2.20 and 10.3 11.03 shall be made directly to the Persons entitled thereto. The Administrative Applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Credit Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, Day and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan, BA or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of such Loan, BA or LC Disbursement; all other payments hereunder and under each other Credit Document shall be made in Dollars orUS Dollars. Any payment required to be made by any Agent hereunder shall be deemed to have been made by the time required if such Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by such Agent to make such payment.
(b) If at any time insufficient funds are received by the Agents from any Borrower (or from the Company as guarantor of the Obligations of such Borrower pursuant to Article X) and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from such Borrower hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and BAs and unreimbursed LC Disbursements then due and payable from such Borrower hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC Disbursementsthen due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or Loans, BAs, participations in LC Disbursements or Swingline Loans that would result accrued interest on any of the foregoing (collectively “Claims”) resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon Claims than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Claims of the other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount amounts of principal of and accrued interest on their respective Revolving Credit ExposureClaims; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Claims to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Company and each Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Company or such Borrower in the amount of such participation.
(d) Unless the Administrative an Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative such Agent for the account of the any Lenders or the any Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative such Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders applicable Lender or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative such Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative such Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative such Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(d) or (e), 2.06(b), 2.17(c) or 11.03(c) then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), and each other Agent, at the case direction of Letters the Administrative Agent, shall, apply any amounts thereafter received by it for the account of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Amdocs LTD), Credit Agreement (Amdocs LTD)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursementsdrawings under Letters of Credit, or of amounts payable under Section 2.18Sections 2.15, 2.19 2.16, or 2.202.17, or otherwise) prior without condition or deduction for any defense, recoupment, set-off or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to 1:00 p.m. the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m., Central Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxesspecified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the Issuing Bank applicable L/C Issuer or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons entitled thereto. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in Dollars or, accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to the extent expressly set forth in Section 2.22, the applicable Alternative Currencymake such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC DisbursementsUnreimbursed Amounts, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties and (ii) second, towards payment of principal of Loans and Unreimbursed Amounts then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC DisbursementsUnreimbursed Amounts then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC Disbursements Letters of Credit or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposureentitled thereto, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure and Swingline Loans of other Lenders entitled thereto to the extent necessary so that the benefit of all such payments shall be shared by the Lenders entitled thereto ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposureand Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, interest and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lenderincluding, without limitation, pursuant to transactions in connection with an open market purchase, Dutch Auction, Section 2.11(g), Section 9.04(i) or and Section 2.19), (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in Letters of Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply), and (z) transactions in connection with any Extension, Incremental Term Facility, Incremental Revolving Facility Commitment, Replacement Revolving Facility or Refinancing Term Loan. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received written notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank applicable L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank L/C Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of Overnight Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder on Loans denominated in Dollars (whether of principal, interest, fees or reimbursement of LC DisbursementsDisbursements in Dollars, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m. 2:00 p.m., Houston, Texas time, on the date when duedue in Dollars, in immediately available funds, free and clear of any defenses, rights of without set-offoff or counterclaim. The Borrower shall make each payment required to be made by it hereunder on Loans denominated in an Alternative Currency (whether of principal, counterclaiminterest, fees or reimbursements of LC Disbursements in an Alternative Currency, or (subject to of amounts payable under Section 2.202.14, 2.15 or 2.16, or otherwise) withholding on the date when due in the applicable Alternative Currency, in immediately available funds, without set-off or deduction of taxescounterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments in Dollars shall be made to the Administrative Agent at the Payment Officeits offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, except payments to be made directly to the Issuing Bank Lender or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 10.03 shall be made directly to the Persons entitled thereto. All payments in Alternative Currencies shall be made to the Alternative Currency Agent at the place designated by the Alternative Currency Agent in its notice therefor, except payments to be made directly to the Issuing Lender or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent or the Alternative Currency Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent or the Alternative Currency Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankLender, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankLender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.17(d) or 10.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of Letters each of Credit denominated (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Sources: Credit Agreement (Cardtronics Inc), Credit Agreement (Cardtronics Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, premium, fees or reimbursement of LC Disbursements or Foreign Credit Disbursements, or of amounts payable under Section 2.182.17, 2.19 2.18 or 2.202.19, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, local time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Administrative Agent’s Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as otherwise expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoherein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period ending on such Business Day. Except as otherwise specified in this Agreement, each such payment (other than (i) principal of such extension. All payments hereunder and interest on Qualified Global Currency Loans and LC Disbursements denominated in an Alternative Currency, which shall be made in Dollars the applicable Qualified Global Currency or, to the extent expressly set forth except as otherwise specified in Section 2.222.5(e), the applicable Alternative Currency, as the case may be and (ii) payments in respect of the Foreign Credit Instruments and Foreign Credit Disbursements thereunder, which shall be made in the currency applicable to such Foreign Credit Instrument) shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements and Foreign Credit Disbursements, interest interest, premium and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements and Foreign Credit Disbursements then due and payable hereunder, pro rata to and any premium then due hereunder, ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC Disbursements and Foreign Credit Disbursements, and any premium, then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest (or premium, if any) on any of its Domestic Revolving Loans, Global Revolving Loans, Term Loans, participations in LC Disbursements, participations in Swingline Loans or participations in LC Foreign Credit Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Domestic Revolving Loans, Global Revolving Loans, Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit Exposure Disbursements and accrued interest (and fees premium, if any) thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Domestic Revolving Loans, the Global Revolving Loans, the Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit Exposure Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest (and premium, if any) on their respective Domestic Revolving Loans, Global Revolving Loans, Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit ExposureDisbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in LC Disbursements or participations in Foreign Credit Exposure Disbursements to any assignee or participant, other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders (or the Issuing Bank any of them) hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, relevant Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate to represent its cost of overnight or short-term funds in the case of Letters of Credit denominated in an Alternative Currencyrelevant currency (which determination shall be conclusive absent manifest error).
(e) If any Lender shall fail to make any payment required to be made by it to the Administrative Agent, the Swingline Lender or any Issuing Lender, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursementsdrawings under Letters of Credit, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior without condition or deduction for any defense, recoupment, set-off or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to 1:00 the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of Alternate Currency Loans or Alternate Currency Letters of Credit, in the applicable Alternate Currency) and in Same Day Funds not later than (x) in the case of Loans or Letters of Credit denominated in Dollars, 2:00 p.m. Local Time or (y) in the case of Loans or Letters of Credit denominated in Alternate Currencies, 9:00 a.m. Local Time, in each case, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxesspecified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the Issuing Bank or the Swingline Lender applicable L/C Issuer as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments payable in Dollars due under this Agreement be made in the United States. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in Dollars or, accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to the extent expressly set forth in Section 2.22, the applicable Alternative Currencymake such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC DisbursementsUnreimbursed Amounts, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties and (ii) second, towards payment of principal of Loans and Unreimbursed Amounts then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC DisbursementsUnreimbursed Amounts then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC Disbursements or Swingline Loans that would result Letters of Credit resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposureentitled thereto, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure of other Lenders entitled thereto to the extent necessary so that the benefit of all such payments shall be shared by the Lenders entitled thereto ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in Letters of Credit; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection Section 2.18(c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lenderincluding, without limitation, pursuant to Section 2.11(h), Section 2.19(b), Section 2.19(c) and Section 9.04(i)) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in Letters of Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection Section 2.18(c) shall applyapply except for any such assignment in accordance with Section 9.04(i)). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank applicable L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank L/C Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of Overnight Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), Section 2.05(d), Section 2.06(b) or Section 2.18(d), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Incremental Assumption Agreement No. 4 and Fifth Amendment to Credit Agreement (Playtika Holding Corp.), Credit Agreement (Playtika Holding Corp.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.05, 2.19 or 2.20, Section 2.06 or otherwise) prior to 1:00 p.m. on the date when due, in Dollars in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction the account of taxesthe Administrative Agent as designated in writing from time to time by the Administrative Agent to the Borrower and Lenders for such purpose, prior to 12:00 noon, New York City time. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment OfficeAgent, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18Section 2.05, 2.19Section 2.06, 2.20 and 10.3 Section 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person in like funds to the appropriate recipient recipient, for the account of its applicable Lending Office, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon participations in LC Disbursements than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposureparticipations in LC Disbursements; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.01(c) or (d), or Section 2.07(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Letter of Credit Agreement (NuStar Energy L.P.), Letter of Credit Agreement (NuStar Energy L.P.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) Table of Contents first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Hughes Network Systems, LLC), Credit Agreement (Hughes Communications, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 1:00 p.m. p.m., New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account specified by the Administrative Agent for the account of the applicable Lenders or, in any such case, to such other account as the Administrative Agent shall from time to time specify in a notice delivered to the Borrower, except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid (it being understood that the Borrower shall not be deemed to be in breach of Credit denominated in an Alternative Currencyany of its obligations hereunder solely as a result of such application by the Administrative Agent of any amounts received by it from or on behalf of the Borrower for the account of such Lender).
Appears in 2 contracts
Sources: Credit Agreement (PharMerica CORP), Credit Agreement (PharMerica CORP)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursementsdrawings under Letters of Credit, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior without condition or deduction for any defense, recoupment, set-off or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to 1:00 p.m. the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxesspecified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the applicable Borrower by the Administrative Agent, except payments to be made directly to the Issuing Bank applicable L/C Issuer or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in Dollars or, accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to the extent expressly set forth in Section 2.22, the applicable Alternative Currencymake such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrowers to pay fully all amounts of principal, unreimbursed LC DisbursementsUnreimbursed Amounts, interest and fees then due from the Borrowers hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrowers hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties and (ii) second, towards payment of principal of Loans and Unreimbursed Amounts then due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC DisbursementsUnreimbursed Amounts then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC Disbursements Letters of Credit or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposureentitled thereto, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure and Swingline Loans of other Lenders entitled thereto to the extent necessary so that the benefit of all such payments shall be shared by the Lenders entitled thereto ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposureand Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lenderincluding, without limitation, pursuant to Section 2.11(g) and Section 9.04(i)) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in Letters of Credit Exposure to any assignee or participant, other than to the a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the any Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank applicable L/C Issuer hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank L/C Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of Overnight Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp), First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Unless otherwise specified, the Borrowers shall make each payment required to be made by it itthem hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.18Sections 2.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 12:00 p.m., Local Time, on the date when due, in immediately available funds. Each such payment shall be made without condition or deduction for any defense, free and clear of any defensesrecoupment, rights of set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the applicable Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars or(in the case of Letters of Credit denominated in Canadian Dollars, taking the Dollar Equivalent of any L/C Disbursements). Any payment required to be made by the extent expressly set forth Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in Section 2.22, accordance with the applicable Alternative Currencyregulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If Subject to Section 7.02, if at any time insufficient funds are received by and available to the Administrative Agent from the Borrower Agent to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrowers hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrowers hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, (ii) second, towards payment of unreimbursed L/C Disbursements then due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of unreimbursed L/C Disbursements then due to such parties, and (iii) third, towards payment of principal and unreimbursed LC Disbursementsthen due from the Borrowers hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements of such Class and accrued interest and fees thereon than the proportion received by any other Lender with respect entitled to its Revolving Credit Exposurereceive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements of such Class of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the all such Lenders entitled thereto ratably in accordance with the aggregate principal amount of principal each such Lender’s respective Term Loans, Revolving Facility Loans and participations in L/C Disbursements of such Class and accrued interest on their respective Revolving Credit Exposurethereon; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection clause (c) shall not be construed to apply to any payment made by the theany Borrower pursuant to to, and in accordance with the express terms of of, this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The TheEach Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the theany Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the theany Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Agent prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower Agent will not make such payment, the Administrative Agent may assume that the Borrower Agent has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower Agent has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(d) or (e), 2.06 or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, interest or fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.13, 2.14, 2.15 or 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or applicable account designated to the Swingline Lender as expressly provided herein and Borrower by the Administrative Agent, except that payments pursuant to Sections 2.182.13, 2.192.14, 2.20 2.15, 2.18 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: first(i) FIRST, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) SECOND, towards payment of principal and unreimbursed LC Disbursementsthen due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans or participations in LC Disbursements or Swingline Loans that would result C resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Term Loans C and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Term Loans C of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureTerm Loans C; provided PROVIDED that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions -65- of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Term Loans C to any assignee or participant, other than to the such Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may beLenders, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b) or 2.16(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Loan Agreement (Celanese CORP)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.11, 2.19 2.12 or 2.202.13, or otherwise) prior to 1:00 p.m. 12:00 noon, Chicago, Illinois time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, counterclaim, or (subject to Section 2.20) withholding recoupment or deduction of taxesany kind. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other office as the Payment OfficeAdministrative Agent shall from time to time designate to the Borrower), except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.11, 2.192.12, 2.20 2.13 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder or under any other Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any fees payable pursuant to Section 2.08 or any payment accruing interest, such fees and such interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or and the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(e) or (f), 2.03(b) or 2.14(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Unisource Energy Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, local time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment its offices at its Administrative Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as otherwise expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoherein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder Except as otherwise specified in this Agreement, each such payment (other than principal of and interest on Qualified Global Currency Loans and LC Disbursements denominated in an Alternative Currency, which shall be made in Dollars the applicable Qualified Global Currency or, to the extent expressly set forth except as otherwise specified in Section 2.222.5(e), the applicable Alternative Currency, as the case may be) shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders (or the Issuing Bank any of them) hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, relevant Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate to represent its cost of overnight or short-term funds in the case of Letters of Credit denominated in an Alternative Currencyrelevant currency (which determination shall be conclusive absent manifest error).
(e) If any Lender shall fail to make any payment required to be made by it to the Administrative Agent, the Swingline Lender or any Issuing Lender, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18Sections 2.6, 2.19 2.7 or 2.202.8, or otherwise) at the applicable Payment Office prior to 1:00 p.m. (New York, New York time, in the case of payments made to a Payment Office in the United States, or 1:00 p.m. local time at any applicable Payment Office located outside the United States) on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.6, 2.19, 2.20 2.7 and 2.8 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. .
(b) All payments hereunder of Obligations shall be made in Dollars orDollars, except for reimbursement obligations with respect to the extent expressly set forth Letters of Credit issued in Section 2.22Alternate Currencies, which shall be repaid, including interest thereon, in the applicable Alternative Alternate Currency.
(bc) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata and other amounts not required to be applied in another manner ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all principal towards payment of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans fees that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure participations in LC Disbursements and accrued interest and thereon or fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposureparticipations in LC Disbursements; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(c) and (d), 2.7(a), 2.9(d), 2.10(d) or (e) or 10.3(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Bristow Group Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18Sections 3.02, 2.19 or 2.203.03, 3.04 and 3.05 or otherwise) at or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 1:00 p.m. 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without setoff or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the reasonable discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.183.02, 2.193.03, 2.20 3.04, 3.05 and 10.3 11.04 shall be made directly to the Administrative Agent for the benefit of to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Administrative Agent for the benefit of the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the manner as follows: firstprovided in Section 2.09(c) or 8.03 hereof, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; secondas applicable, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursementsthereto.
(c) If any Lender shall, by exercising any right of set-off setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are 18-22178-rdd Doc 51-1 Filed 02/06/18 Entered 02/06/18 17:00:35 Exhibit Pg 83 of 432 purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Loan Parties rights of set-off setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower a Loan Party in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.02(f), 2.10(d), 2.12(d) or 2.13(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Abl Credit Agreement
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section Sections 2.18, 2.19 2.19, 2.20 or 2.2010.3, or otherwise) prior to 1:00 2:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If All payments of Obligations shall be made in Dollars, except for Loans funded, and reimbursement obligations with respect to Letters of Credit issued, in Alternate Currencies, which shall be repaid, including interest thereon, in the applicable Alternate Currency.
(c) Subject to the terms of Section 8.2, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain any amounts from the Borrower, such Lender shall apply such payments to the Obligations payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans other Revolving Credit Exposure that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and other Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and other Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other Revolving Credit Exposure; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or other Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.5(b), 2.6(b), 2.22(d) or (e) or 10.3(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, Section 2.19 or Section 2.20, or otherwise) prior to 1:00 p.m. 12:00 noon on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections Section 2.18, Section 2.19, Section 2.20 and Section 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all the fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; , (ii) second, to all reimbursable expenses towards payment of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; and fourthfees then due to such parties, to all (iii) third, towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties, and (iv) fourth, towards payment of all other Obligations then due, ratably among the parties entitled thereto in accordance with the amounts of such Obligations then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency)compensation.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding without condition or deduction of taxesfor any defense, recoupment, set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from any Loan Party (or proceeds from any Collateral) following an acceleration of the Obligations under this Agreement or any Event of Default under Section 7.01(h) or (i), to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees and other Obligations then due from the Borrower hereunder, such funds shall be applied as followsapplied, subject to any applicable intercreditor agreement: first, ratably, to all fees and reimbursable expenses of pay any fees, indemnities, or expense reimbursements then due to the Administrative Agent, the Collateral Agent then or any Issuing Bank from the Borrower (other than in connection with obligations in respect of Secured Cash Management Agreements or Secured Hedge Agreements); second, ratably, to pay interest due and payable pursuant in respect of any unreimbursed L/C Disbursements, Protective Advances and Overadvances; third, ratably to any pay principal of the Loan Documentsunreimbursed L/C Disbursements, Protective Advances and Overadvances; secondfourth, ratably, to all reimbursable expenses of pay any fees, indemnities or expense reimbursements then due to the Lenders and all fees and reimbursable expenses from the Borrower (other than in connection with obligations in respect of the Issuing Bank then Secured Cash Management Agreements or Secured Hedge Agreements); fifth, ratably, to pay interest due and payable pursuant in respect of any Revolving Loans; sixth, ratably, to pay principal of Swingline Loans and Revolving Loans (other than Protective Advances and Overadvances) then due from the Borrower hereunder and any of Pari Passu Secured Hedge Obligations and to Cash Collateralize Revolving L/C Exposure in accordance with the Loan Documentsprocedures set forth in Section 2.05(j); seventh, pro rata ratably, to the Lenders payment of any obligations in respect of Secured Cash Management Agreements and the Issuing Bank based on their respective pro rata shares of such fees and expensesany other Secured Hedge Agreements that do not constitute Pari Passu Secured Hedge Obligations; thirdeighth, ratably, to all interest and fees then the payment of any other Obligations due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and feesAgents or any Lender by the Borrower; and fourthninth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to Borrower or as the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC DisbursementsBorrower shall direct.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its Revolving Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect entitled to its Revolving Credit Exposurereceive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in L/C Disbursements and Swingline Loans of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the all such Lenders ratably in accordance with the aggregate principal amount of principal of each such Lender’s respective Revolving Loans and participations in L/C Disbursements and Swingline Loans and accrued interest on their respective thereon vis-à-vis the aggregate principal amount of all such Lenders’ Revolving Credit ExposureLoans and participations in L/C Disbursements and Swingline Loans and the aggregate accrued interest thereon; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection clause (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or (c), 2.18(d) or 2.21, then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (DS Services of America, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. (i) in the case of payments denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent at its Domestic Payment Office or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s Eurocurrency Payment OfficeOffice for such currency, except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of #92412282v18 any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments hereunder shall to be made by such Borrower hereunder in such currency shall instead be made when due in Dollars or, in an amount equal to the extent expressly set forth in Section 2.22Dollar Amount (as of the date of repayment) of such payment due, it being the applicable Alternative Currencyintention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) [Intentionally omitted].
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the relevant Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Banks hereunder that the such Borrower will not make such payment, the #92412282v18 Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Letters of Credit Loans denominated in an Alternative a Foreign Currency).
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Banks to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its reasonable discretion.
Appears in 1 contract
Sources: Credit Agreement (Tapestry, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, local time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment its offices at its Administrative Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as otherwise expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoherein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder Except as otherwise specified in this Agreement, each such payment (other than principal of and interest on Qualified Global Currency Loans and LC Disbursements denominated in an Alternative Currency, which shall be made in Dollars the applicable Qualified Global Currency or, to the extent expressly set forth except as otherwise specified in Section 2.222.5(e), the applicable Alternative Currency, as the case may be) shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations -------- are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders (or the Issuing Bank any of them) hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, relevant Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate to represent its cost of overnight or short-term funds in the case of Letters of Credit denominated in an Alternative Currencyrelevant currency (which determination shall be conclusive absent manifest error).
(e) If any Lender shall fail to make any payment required to be made by it to the Administrative Agent, the Swingline Lender or any Issuing Lender, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 and 10.3 9.05 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or any Affiliate thereof of the Borrower (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency).paragraph
Appears in 1 contract
Sources: Revolving Credit Agreement (Nuance Communications, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.17, 2.19 Section 2.18 or 2.20Section 2.19, or otherwise) prior to 1:00 p.m. 12:00 noon on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18Section 2.17, 2.19, 2.20 Section 2.18 and Section 2.19 and Section 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all the fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; , (ii) second, to all reimbursable expenses towards payment of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; and fourthfees then due to such parties, to all (iii) third, towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties, and (iv) fourth, towards payment of all other Obligations then due, ratably among the parties entitled thereto in accordance with the amounts of such Obligations then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents Borrowers consent to the foregoing and agreesagree, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency)compensation.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no time is expressly required, prior to 12:00 noon, New York City time) on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its main offices at New York, New York or to such other office within the Payment OfficeUnited States of America as otherwise designated from time to time by the Administrative Agent, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder of under any other Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder or under any other Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, and participations in LC Disbursements; provided that that
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and and
(ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankLender, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankLender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Atari Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC DisbursementsDisbursement) by noon Local Time, or of amounts payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices designated to the Payment OfficeBorrowers from time to time, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Parent or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents Borrowers consent to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the a Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
(f) All proceeds of any realization on the Collateral pursuant to the Collateral Documents and any payments received by the Administrative Agent or any Lender subsequent to and during the continuance of any Event of Default, subject to the obligations secured thereby, shall be allocated and distributed by the Agent as follows:
(i) First, to the payment of all fees, costs, expenses and other amounts owing to the Administrative Agent, including without limitation all reasonable attorneys’ fees, in connection with the Overnight Foreign Currency Rate enforcement of the Collateral Documents and otherwise administering the Loan Documents;
(ii) Second, to payment of any Secured Obligations pro rata among those parties to whom such Secured Obligations are due in accordance with the case amounts owing to each of Letters them, provided that the proceeds of Credit denominated any realization on the Collateral may be altered by the Administrative Agent, with the consent of the Lenders, in an Alternative Currency)a manner to maximize the recovery by all Lenders and their Affiliates and which would not decrease the recovery of any Lender; and
(iii) Third, to the Borrowers, their Subsidiaries or such other Person as may be legally entitled thereto The order and priority set forth in this Section 2.18(f) and the related provisions are set forth solely to determine the rights and priorities of the Administrative Agent and the Lenders as among themselves, and the order and priority may at any time be changed by the Lenders without the consent of the Borrowers, provided that the order or priority of any payment to the Administrative Agent may only be changed with the consent of the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Tesco Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 12:00 noon local time in New York (in the case of payments in U.S. Dollars) or in the principal financial center for the relevant Alternate Currency (in the case of payments in such Alternate Currency), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, counterclaim, off or (subject to counterclaim except as expressly provided in Section 2.20) withholding or deduction of taxes9.08(b). Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at by wire transfer of immediately available funds by 12:00 noon local time in New York (in the Payment Officecase of payments in U.S. Dollars) or in the principal financial center for the relevant Alternate Currency (in the case of payments in such Alternate Currency), to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Borrower, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments Credit Agreement received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all pay interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all pay principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with such interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a (if such Loan is denominated in U.S. Dollars) or at the overnight Credit Agreement London interbank offered rate determined for the relevant Alternate Currency (▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ominated in an Alternate Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(d) or (e), 2.07(b) or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Brunswick Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 12:00 noon, local time, at the place of payment, on the date when due, in the currency in which such Loan was made and in federal funds or such other immediately available fundsfunds as may be customary for the settlement of international transactions in the relevant currency at such place, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to such account as the Administrative Agent shall have specified and, unless and until otherwise specified, all such payments payable in dollars shall be made to the Administrative Agent at the Payment Officeits offices at 270 ▇▇▇▇ ▇▇▇▇▇▇, except ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇cept payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that 37 43 payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the applicable Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has Borrowers 38 44 have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder under the Loan Documents (whether of principal, interestinterest or fees, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.13, 2.19 2.14 or 2.20, 2.15 or otherwise) prior to 1:00 p.m. before the time expressly required under the relevant Loan Document for such payment (or, if no such time is expressly required, before 12:00 noon, New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts amount received after such time on any date day may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices specified in Section 9.01(a)(ii) (or at such other offices as may be designated by the Payment OfficeAdministrative Agent from time to time by written notice to the Borrower), except payments to be made directly to the an LC Issuing Bank or the a Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.13, 2.192.14, 2.20 2.15 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments payment received by it for the account of any other Person to the appropriate recipient promptly following after receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall will be extended to the next succeeding Business Day, Day and, in the case of any if such payment accruing accrues interest, interest thereon shall will be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all pay interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all pay principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or any of its participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to Unless, before the date on which any payment is due to the Administrative Agent for the account of one or more Lender Parties hereunder, the Lenders or Administrative Agent receives from the Issuing Bank hereunder Borrower notice that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon on such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, each relevant Lender Party the amount or amounts duedue to it. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, Lender Party severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank Party with interest thereon, for each day from and including the date day such amount is distributed to it to but excluding the date of payment to day it repays the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender fails to make any payment required to be made by it pursuant to Section 2.04(d), 2.04(e), 2.05(b), 2.16(d) or 9.03(c), the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Fastentech Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding without condition or deduction of taxesfor any defense, recoupment, set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 10.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If (i) at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees and other Obligations then due hereunderfrom the Borrower hereunder or (ii) at any time that an Availability Triggering Event shall have occurred and be continuing and proceeds of Collateral are received by the Administrative Agent, such funds shall be applied as followsapplied, subject to the Senior Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and any other applicable intercreditor agreements: first, ratably, to all fees and reimbursable expenses of pay any fees, indemnities, or expense reimbursements then due to the Administrative Agent, the Collateral Agent then due and payable pursuant to or any of Issuing Bank from the Borrower under the Loan Documents; second, ratably, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then pay interest due and payable pursuant in respect of any unreimbursed L/C Disbursements, Protective Advances and Overadvances; third, ratably to pay principal of unreimbursed L/C Disbursements, Protective Advances and Overadvances; fourth, ratably, to pay any of fees or expenses reimbursements then due to the Lenders from the Borrower under the Loan Documents; fifth, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; thirdratably, to all pay interest and fees then due and payable hereunderin respect of any Revolving Facility Loans; sixth, pro rata ratably, to pay principal of Revolving Facility Loans (other than Protective Advances and Overadvances) then due from the Borrower hereunder and any Pari Passu Secured Swap Obligations; seventh, ratably, to cash collateralize Letters of Credit in accordance with the procedures set forth in Section 2.05(j); eighth, ratably, to the Lenders based on their respective pro rata shares payment of such interest any Cash Management Obligations and feesany other Secured Swap Obligations that do not constitute Pari Passu Secured Swap Obligations; ninth, ratably, to the payment of any other Obligations due to the Agents or any Lender by the Borrower; and fourthtenth, to all principal the Borrower or as the Borrower shall direct or as a court of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursementscompetent jurisdiction may otherwise direct.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, participant (other than to the Borrower or any a Restricted Subsidiary or Affiliate thereof (of the Borrower as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or (c), or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Verso Paper Corp.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m., New York City time (or, in the case of an amount payable in an Alternate Currency, 1:00 p.m. local time at the place of payment), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without set‑off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Paying Agent at its offices at 270 Park Avenue, New York, New York (or, in the Payment Officecase of payments in an Alternate Currency, su▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars ordollars, except as expressly provided herein with respect to Alternate Currency Letters of Credit. All payments to be made by the Borrower in an Alternate Currency pursuant to Section 2.05(m) shall be made in such Alternate Currency in such funds as may then be customary for the settlement of international transactions in such Alternate Currency for the account of the applicable Issuing Bank at such time and at such place as shall have been notified by such Issuing Bank to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyBorrower by not less than four Business Days’ notice.
(b) If at any time insufficient funds are received by and available to the Administrative Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off set‑off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Paying Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Paying Agent for the account of the Lenders or the any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the such Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Paying Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Paying Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Paying Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(d) or (e), 2.06(b), 2.16(e) or 2.17(d), then the Overnight Foreign Currency Rate Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Paying Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Macy's, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursementsprincipal.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposure; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant, other than to the any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Agent prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) Notwithstanding anything herein to the Overnight Foreign Currency Rate contrary, any amount paid by the Borrowers for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will be retained by the Administrative Agent in a segregated non-interest bearing account until the Revolving Commitment Termination Date, at which time the funds in such account will be applied by the Administrative Agent, to the fullest extent permitted by law, in the case following order of Letters priority: first, to the payment of Credit denominated any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the payment of any amounts owing by such Defaulting Lender to the Swingline Lender under this Agreement; third, to the payment of interest due and payable to the Lenders hereunder that are not Defaulting Lenders, ratably among them in an Alternative Currency)accordance with the amounts of such interest then due and payable to them; fourth, to the payment of fees then due and payable to the Lenders hereunder that are not Defaulting Lenders, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, to the payment of principal then due and payable to the Lenders hereunder that are not Defaulting Lenders, ratably in accordance with the amounts thereof then due and payable to them; sixth, to the ratable payment of other amounts then due and payable to the Lenders hereunder that are not Defaulting Lenders; and seventh, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20, Disbursements or otherwise) prior to the time required hereunder for such payment or, if no such time is expressly required, prior to (i) in the case of any payment in US Dollars, 1:00 p.m. p.m., New York City time and (ii) in the case of any payment in an Alternative Currency, the Applicable Time, in each case, on the date when due, in immediately available funds, free and clear of without any defensesdefense, rights of set-off, recoupment or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at for the Payment Officeaccount of the applicable Lenders to such account as the Administrative Agent shall from time to time specify in one or more written notices delivered to the Borrower, except that payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein shall be so directly made and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, Day and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder and under each other Loan Document of principal or interest in respect of any Loan or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in Dollars orUS Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currency.
(b) If at any time insufficient funds are received clearing or settlement system used by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposure; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency).
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m. 2:00 p.m., New York City time (in the case of payments with respect to Foreign Currency Loans, prior to 11:00 a.m., London time), in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent Agent, at the Administrative Agent’s Payment OfficeOffice for such currency, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder (whether of principal, interest or otherwise) shall be made in Dollars the applicable currency specified elsewhere herein or, to the extent expressly set forth if no currency is specified, in Section 2.22dollars, the applicable Alternative it being understood and agreed that any repayment (including any partial prepayment) of a Loan denominated in an Agreed Currency shall be made in such Agreed Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all pay interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount amounts of principal of interest and accrued interest on their respective Revolving Credit Exposure; provided that (i) if any fees then due to such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interestparties, and (ii) second, to pay principal then due hereunder, ratably among the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and parties entitled thereto in accordance with the express terms amounts of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect principal then due to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationparties.
(dc) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater applicable Overnight Rate.
(d) If and for so long as any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(b), 2.17(c) or 10.03(d), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Federal Funds Rate Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and a rate application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in accordance with banking industry rules on interbank compensation its discretion (including provided that any such amounts so held shall be returned to such Lender upon its payment of the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currencyaforementioned previously unpaid amounts then due and owing).
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 12:00 noon, local time, at the place of payment, on the date when due, in the currency in which such Loan was made and in federal funds or such other immediately available fundsfunds as may be customary for the settlement of international transactions in the relevant currency at such place, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to such account as the Administrative Agent shall have specified and, unless and until otherwise specified, all such payments payable in dollars shall be made to the Administrative Agent at the Payment Officeits offices at 270 Park Avenue, New York, New York, except payments to be made directly to the Issuing Bank or the Swingline ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ine Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the applicable Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower in fact such payment has not in fact made such paymentbeen made, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except as may be reasonably specified on reasonable notice by the Administrative Agent as it from time to time deems necessary or appropriate with respect to any Alternative Currency, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) from a location in the United States of America prior to 1:00 p.m. 12:00 noon, New York City time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Administrative Agent’s Office, except payments to be made directly to the Issuing Bank L/C Issuer or the Swingline Swing Line Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, dollars or the applicable Alternative Currency, as the case may be.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC L/C Disbursements or Swingline Swing Line Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in L/C Disbursements and Swing Line Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in L/C Disbursements and Swing Line Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in L/C Disbursements and Swing Line Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankL/C Issuer, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankL/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank the L/C Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.12, 2.19 2.13 or 2.202.15, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 1:00 p.m. 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without setoff or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.12, 2.192.13, 2.20 2.15 and 10.3 11.03 shall be made directly to the Administrative Agent for the benefit of to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Administrative Agent for the benefit of the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.02(f), 2.14(d), 2.17(d), 2.18(d) or 11.03(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Symmetry and each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. the time required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, Local Time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the case of payments made by Symmetry or the US Borrower, to the Administrative Agent at Agent, and (ii) in the Payment Officecase of payments made by the Canadian Borrower, to the Canadian Agent, in each case to the applicable account specified by such Agent, except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.16, 2.192.17, 2.20 2.18 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent and the Canadian Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereofthereof (it being understood that all payments received by the Canadian Agent shall be distributed, with respect to any Lender, to the Applicable Lending Office of such Lender designated by such Lender for the receipt of payments from the Canadian Borrower). If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan, BA or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of such Loan, BA or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyUS Dollars.
(b) If at any time insufficient funds from a Borrower are received by and available to the Administrative Agent to pay fully all amounts of principalprincipal of the Loans and BAs, unreimbursed LC Disbursements, interest and fees then due hereunderhereunder from such Borrower, such funds shall be applied as follows: first, to all fees and reimbursable expenses of in the manner determined by the Administrative Agent then due and payable pursuant to any of the Loan Documents; secondAgent, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documentsin its sole discretion, pro rata but subject to the Lenders and the Issuing Bank based on their respective pro rata shares provisions of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC DisbursementsSection 2.11(f).
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans Revolving Loans, BAs or participations in LC Disbursements or Disbursements, Swingline Loans that would result or Protective Advances resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, BAs and participations in LC Disbursements, Swingline Loans and Protective Advances and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, BAs and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, BAs and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or BAs or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the applicable Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the an Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the such Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.08(b), 2.19(d) or 9.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, premium, fees or reimbursement of LC Disbursements or Foreign Credit Disbursements, or of amounts payable under Section 2.182.17, 2.19 2.18 or 2.202.19, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, local time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Administrative Agent’s Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as otherwise expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoherein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period to but excluding such Business Day. Except as otherwise specified in this Agreement, each such payment (other than (i) principal of such extension. All payments hereunder and interest on Qualified Global Currency Loans and LC Disbursements denominated in an Alternative Currency, which shall be made in Dollars the applicable Qualified Global Currency or, to the extent expressly set forth except as otherwise specified in Section 2.222.5(e), the applicable Alternative Currency, as the case may be and (ii) payments in respect of the Foreign Credit Instruments and Foreign Credit Disbursements thereunder, which shall be made in the currency applicable to such Foreign Credit Instrument) shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements and Foreign Credit Disbursements, interest interest, premium and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements and Foreign Credit Disbursements then due and payable hereunder, pro rata to and any premium then due hereunder, ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC Disbursements and Foreign Credit Disbursements, and any premium, then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest (or premium, if any) on any of its Domestic Revolving Loans, Global Revolving Loans, portion of the Term Loan A, portion of the Delayed Draw Term Loan A, Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans or participations in LC Participation Foreign Credit Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Domestic Revolving Loans, Global Revolving Loans, portion of the Term Loan A, portion of the Delayed Draw Term Loan A, Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit Exposure Disbursements and accrued interest (and fees premium, if any) thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Domestic Revolving Loans, the Global Revolving Loans, the Term Loan A, the Delayed Draw Term Loan A, any Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit Exposure Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest (and premium, if any) on their respective Domestic Revolving Loans, Global Revolving Loans, portion of the Term Loan A, portion of the Delayed Draw Term Loan A, Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit ExposureDisbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any other Loan Document or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in LC Disbursements or participations in Foreign Credit Exposure Disbursements to any assignee or participant, other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders (or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency).any of
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15, 2.16 or 2.202.19, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment or, if no such time is expressly required, prior to 12:00 noon, Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Applicable Agent at for the Payment Officeaccount of the Lenders to such account as the Applicable Agent shall from time to time specify in one or more notices delivered to the Company, except that payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein shall be made directly to such parties and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16, 2.19 and 10.3 11.03 shall be made directly to the Persons entitled thereto. The Administrative Applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, Day and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in Dollars orUS Dollars. Any payment required to be made by any Agent hereunder shall be deemed to have been made by the time required if such Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by such Agent to make such payment.
(b) If at any time insufficient funds are received by the Agents from any Borrower (or from the Company as guarantor of the Obligations of such Borrower pursuant to Article X) and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from such Borrower hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable from such Borrower hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its US/European Tranche Revolving Loans, French Tranche Revolving Loans, Italian Tranche Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its US/European Tranche Revolving Credit Exposure Loans, French Tranche Revolving Loans, Italian Tranche Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the US/European Tranche Revolving Credit Exposure Loans, French Tranche Revolving Loans, Italian Tranche Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount amounts of principal of and accrued interest on their respective US/European Tranche Revolving Credit ExposureLoans, French Tranche Revolving Loans, Italian Tranche Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Company and each Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Company or such Borrower in the amount of such participation.
(d) Unless the Administrative an Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative such Agent for the account of the Lenders or the Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative such Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the applicable Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative such Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 11.03(c) then the Overnight Foreign Currency Rate Facility Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by any Agent for the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Pall Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Except as otherwise expressly provided herein and except with respect to principal and interest on Loans denominated in an Alternative Currency, all payments by the Borrower hereunder shall be made in U.S. Dollars. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made in such Alternative Currency; provided that if for any reason the Borrower is prohibited by applicable Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in U.S. Dollars in an amount equal to the U.S. Dollar Equivalent of the amount due in such Alternative Currency as of the date of payment.
(b) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m. 12:00 noon, Houston, Texas time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, except payments to be made directly to the Issuing Bank Lender or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth except as otherwise provided in Section 2.22, the applicable Alternative Currency2.05.
(bc) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankLender, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankLender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or 2.05(e), 2.06(b) or 2.17(e), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Hexion Specialty Chemicals, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.13, 2.19 2.14 or 2.202.15, or otherwise) prior to 1:00 p.m. 10:00 a.m., Los Angeles, California time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, counterclaim, or (subject to Section 2.20) withholding recoupment or deduction of taxesany kind. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices located at 445 South Figueroa Street, Los Angeles, California 90071 (or such ot▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Agent shall from time to time designate to the Payment OfficeBorrower), except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.13, 2.192.14, 2.20 2.15 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder or under any other Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any fees payable pursuant to Section 2.10 or any payment accruing interest, such fees and such interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the such Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or and each of the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(e) or (f), 2.05(b) or 2.16(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 12:00 noon, local time, at the place of payment, on the date when due, in the currency in which such Loan was made and in federal funds or such other immediately available fundsfunds as may be customary for the settlement of international transactions in the relevant currency at such place, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to such account as the Administrative Agent shall have specified and, unless and until otherwise specified, all such payments payable in dollars shall be made to the Administrative Agent at the Payment Officeits offices at 2▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC Disbursements.
(c) Disbursements then due to such parties. If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) . Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the applicable Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower in fact such payment has not in fact made such paymentbeen made, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation. If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (including e), 2.07(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it hereunder under the Loan Documents (whether of principal, interestinterest or fees, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.20, 2.16 or otherwise) prior to 1:00 p.m. before the time expressly required under the relevant Loan Document for such payment (or, if no such time is expressly required, before 12:00 noon, New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts amount received after such time on any date day may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the LC Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments payment received by it for the account of any other Person to the appropriate recipient promptly following after receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall will be extended to the next succeeding Business Day, Day and, in the case of any if such payment accruing accrues interest, interest thereon shall will be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all pay interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all pay principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or any of its participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to Unless, before the date on which any payment is due to the Administrative Agent for the account of one or more Lender Parties hereunder, the Lenders or Administrative Agent receives from the Issuing Bank hereunder relevant Borrower notice that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon on such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, each relevant Lender Party the amount or amounts duedue to it. In such event, if the relevant Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, Lender Party severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank Party with interest thereon, for each day from and including the date day such amount is distributed to it to but excluding the date of payment to day it repays the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender fails to make any payment required to be made by it pursuant to 2.04(e), 2.04(f), 2.05(b), 2.17(d) or 9.03(c), the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18Sections 2.13(f), 2.19 2.15, 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. (i) in the case of payments denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agent’s Applicable Payment Office for such currency, in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made and (ii) to the Administrative Agent at its offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s Applicable Payment OfficeOffice for such currency, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.13(f), 2.192.15, 2.20 2.16, 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, or the terms of this Agreement allow or require the conversion of such Credit Event into Dollars, then all payments hereunder shall to be made by such Borrower hereunder in Dollars orsuch currency shall, to the fullest extent expressly set forth permitted by law, instead be made when due in Section 2.22Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations or conversion, and each Borrower agrees to indemnify and hold harmless the Swingline Lender, the applicable Alternative Issuing Bank, the Administrative Agent and the Lenders from and against any loss resulting from any Credit Event made to or for the benefit of such Borrower denominated in a Foreign Currency that is not repaid to the Swingline Lender, the Issuing Bank, the Administrative Agent or the Lenders, as the case may be, in the Original Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) [Intentionally omitted].
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the relevant Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Letters of Credit Loans denominated in an Alternative a Foreign Currency).
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s obligations to it under any such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or any Affiliate thereof of the Borrower (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursementsdrawings under Letters of Credit, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior without condition or deduction for any defense, recoupment, set-off or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to 1:00 the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of Alternate Currency Loans or Alternate Currency Letters of Credit, in the applicable Alternate Currency) and in Same Day Funds not later than (x) in the case of Loans or Letters of Credit denominated in Dollars or Canadian Dollars, 2:00 p.m. Local Time or (y) in the case of Loans or Letters of Credit denominated in Alternate Currencies other than Canadian Dollars, 5:00 a.m. Local Time, in each case, on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxesspecified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the Issuing Bank or the Swingline Lender applicable L/C Issuer as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments payable in Dollars due under this Agreement be made in the United States. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in Dollars or, accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to the extent expressly set forth in Section 2.22, the applicable Alternative Currencymake such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC DisbursementsUnreimbursed Amounts, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties and (ii) second, towards payment of principal of Loans and Unreimbursed Amounts then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC DisbursementsUnreimbursed Amounts then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC Disbursements or Swingline Loans that would result Letters of Credit resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposureentitled thereto, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Facility Loans and participations in Letters of Credit Exposure of other Lenders entitled thereto to the extent necessary so that the benefit of all such payments shall be shared by the Lenders entitled thereto ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in Letters of Credit; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lenderincluding, without limitation, pursuant to Section 2.11(g), Section 2.19(b), Section 2.19(c) and Section 9.04(i)) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in Letters of Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank applicable L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bankapplicable L/C Issuer, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank L/C Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of Overnight Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), Section 2.05(d), Section 2.06(b) or Section 2.18(d), then the Federal Funds Rate and a rate determined Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except for payments required to be made hereunder in a Committed Alternative Currency or in a Designated Committed Alternative Currency in respect of principal of and interest on Revolving Loans denominated in such currency, or in an Alternative Currency as expressly provided in Section 2.04(g) or the following provisions of this Section, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.16 or 2.18, 2.19 or 2.20, or otherwise) in U.S. Dollars prior to 1:00 p.m. 12:00 noon, Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-offoff or counterclaim. All such payments in U.S. Dollars shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to an Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.16, 2.17, 2.18 and 10.03 shall be made directly to the Persons entitled thereto, without set-off or counterclaim, or (subject . All payments to Section 2.20) withholding or deduction be made by a Borrower in an Alternative Currency shall be made in such Alternative Currency in such funds as may then be customary for the settlement of taxesinternational transactions in such Alternative Currency for the account of the Administrative Agent at such time and at such place as shall have been notified by the Administrative Agent to the applicable Borrower by not less than four Business Days’ notice. Any amounts received after such the time required to be received hereunder on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day (provided that if such payment date is the Maturity Date, the date for payment shall be the immediately preceding Business Day, ) and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under any Loan Document of principal or interest in respect of any Loan denominated in an Alternative Currency or of any breakage indemnity under Section 2.17 in respect of any such Loan shall be made in the currency in which such Loan is denominated. All other payments required to be made by any Loan Party under any Loan Document shall be made in U.S. Dollars orexcept that any amounts payable under Section 2.16, 2.17 or 10.03 (or any indemnification or expense reimbursement provision of any other Loan Document) that are invoiced in a currency other than U.S. Dollars shall be payable in the currency so invoiced. Any payment required to be made by the extent expressly set forth Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in Section 2.22, accordance with the applicable Alternative Currencyregulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties; provided that all funds received by the Administrative Agent in an Alternative Currency shall be applied ratably to the payment of amounts due with respect to Loans denominated in such Alternative Currency in accordance with the provisions of this paragraph to the parties entitled thereto based on their respective pro rata shares of in accordance with the amounts then due to such principal and unreimbursed LC Disbursementsparties.
(c) If any Lender shall, by exercising any right of set-off set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off set‑off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the any Lenders or the any Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the applicable Lenders or the each Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(c), 2.08(b), 2.19(d) or 10.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, premium, fees or reimbursement of LC Disbursements or Foreign Credit Disbursements, or of amounts payable under Section 2.182.17, 2.19 2.18 or 2.202.19, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, local time), on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Administrative Agent’s Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as otherwise expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoherein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period to but excluding such Business Day. Except as otherwise specified in this Agreement, each such payment (other than (i) principal of such extension. All payments hereunder and interest on Qualified Global Currency Loans and LC Disbursements denominated in an Alternative Currency, which shall be made in Dollars the applicable Qualified Global Currency or, to the extent expressly set forth except as otherwise specified in Section 2.222.5(e), the applicable Alternative Currency, as the case may be and (ii) payments in respect of the Foreign Credit Instruments and Foreign Credit Disbursements thereunder, which shall be made in the currency applicable to such Foreign Credit Instrument) shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements and Foreign Credit Disbursements, interest interest, premium and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements and Foreign Credit Disbursements then due and payable hereunder, pro rata to and any premium then due hereunder, ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC Disbursements and Foreign Credit Disbursements, and any premium, then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest (or premium, if any) on any of its Domestic Revolving Loans, Global Revolving Loans, Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans or participations in LC Participation Foreign Credit Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Domestic Revolving Loans, Global Revolving Loans, Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit Exposure Disbursements and accrued interest (and fees premium, if any) thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Domestic Revolving Loans, the Global Revolving Loans, any Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit Exposure Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest (and premium, if any) on their respective Domestic Revolving Loans, Global Revolving Loans, Incremental Term Loans, participations in LC Disbursements, participations in Swingline Loans and participations in Foreign Credit ExposureDisbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any other Loan Document or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in LC Disbursements or participations in Foreign Credit Exposure Disbursements to any assignee or participant, other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders (or the Issuing Bank any of them) hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, relevant Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate to represent its cost of overnight or short-term funds in the case of Letters of Credit denominated in an Alternative Currencyrelevant currency (which determination shall be conclusive absent manifest error).
(e) If any Lender shall fail to make any payment required to be made by it to the Administrative Agent, the Swingline Lender or any Issuing Lender, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a1) The Unless otherwise specified, the Borrower shall will make each payment required to be made by it hereunder (whether of principal, interest, fees or fees, reimbursement of LC Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20, L/C Disbursements or otherwise) prior to 1:00 p.m. 2:00 p.m., New York City time, at the Payment Office, except payments to be made directly to the applicable Issuing Bank or Swingline Lender as expressly provided herein and except that (unless the Borrower, the Administrative Agent and the applicable Persons otherwise agree) payments pursuant to Sections 2.15, 2.16, 2.17 and 10.05 will be made directly to the Persons entitled thereto, on the date when due, . All payments shall be in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall will distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereofthereof and will make settlements with the Lenders with respect to other payments at the times and in the manner provided in this Agreement. If Except as otherwise provided herein, if any payment hereunder shall be is due on a day that is not a Business Day, the date for payment shall will be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall will be made payable for the period of such extension. All payments hereunder shall Any payment required to be made by the Administrative Agent hereunder will be deemed to have been made by the time required if the Administrative Agent, at or before such time, has taken the necessary steps to make such payment in Dollars or, accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to the extent expressly set forth in Section 2.22, the applicable Alternative Currencymake such payment.
(b2) If [Reserved].
(3) Except as otherwise provided in this Agreement, if (a) at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees and other Obligations then due hereunderfrom the Borrower hereunder or (b) at any time during a Cash Dominion Period (including in connection with any termination of the Revolving Facility Commitments pursuant to Section 8.01) and the Administrative Agent or the Collateral Agent receives proceeds of Collateral, such funds shall will be applied as follows: applied,
(i) first, to all toward payment of any expenses, fees and reimbursable expenses indemnities due to the Agents, Swingline Lender and each Issuing Bank hereunder;
(ii) second, toward payment of unreimbursed L/C Disbursements, Protective Advances, Overadvances and the Administrative Agent principal amount of any Swingline Loans then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of unreimbursed L/C Disbursements, Protective Advances, Overadvances and payable pursuant to any principal amount of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank Swingline Loans then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; parties;
(iii) third, to all toward payment of interest and fees then due from the Borrower hereunder with respect to any Revolving Facility Credit Exposure, ratably among the parties entitled thereto in accordance with the amounts of interest and payable hereunderfees then due to such parties;
(iv) fourth, pro rata on a ratable basis, toward (a) payment of other principal then due from the Borrower hereunder with respect to any Revolving Facility Credit Exposure, ratably among the parties entitled thereto in accordance with the amounts of such principal then due to such parties and (b) payment of Specified Hedge Obligations up to the Lenders based on their respective pro rata shares amount of Specified Pari Hedge Amount existing therefor, ratably among the parties entitled thereto in accordance with the amounts of such interest Specified Hedge Obligations then due to such parties;
(v) fifth, if an Event of Default has occurred and fees; and fourthis continuing, to all principal cash collateralize Letters of Credit issued for the account of the Loans Borrower or any Subsidiary in accordance with Section 2.05(11);
(vi) sixth, to pay any other Obligations (excluding any (x) Obligations with respect to Refinancing Term Loans, (y) Cash Management Obligations or (z) Specified Hedge Obligations) ratably among the parties thereto in accordance with such amounts so owed them;
(vii) seventh, to payment of other Specified Hedge Obligations then due from the Borrower or any Subsidiary Loan Party, ratably among the parties entitled thereto in accordance with the amounts of Specified Hedge Obligations then due to such parties;
(viii) eighth, to payment of Cash Management Obligations of the Borrower or any Subsidiary Loan Party then due from the Borrower or such Subsidiary Loan Party, ratably among the parties entitled thereto in accordance with the amounts of such Cash Management Obligations then due to such parties;
(ix) ninth, to payment of all other Obligations (other than those relating to Refinancing Term Loans) of the Borrower then due and unreimbursed LC Disbursements payable, ratably among the parties entitled thereto in accordance with the amounts of such Obligations then due to such parties;
(x) tenth, toward payment of interest then due from the Borrower hereunder with respect to the Refinancing Term Loans, ratably among the parties entitled thereto in accordance with the amounts of interest then due to such parties;
(xi) eleventh, toward payment of principal then due from the Borrower hereunder with respect to the Refinancing Term Loans, ratably among the parties entitled thereto in accordance with the amounts of such principal then due to such parties; and
(xii) twelfth, to payment of all other Obligations of the Borrower then due and payable hereunderwith respect to the Refinancing Term Loans, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsObligations then due to such parties; provided that the application of such proceeds at all times will be subject to the application of proceeds provisions contained in any applicable Intercreditor Agreement.
(c4) If Except as otherwise provided in this Agreement and subject to express priorities set forth in Section 2.18(3) above, if any Lender shallLender, by exercising any right of set-off or counterclaim or otherwise, obtain obtains payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in L/C Disbursements and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall will purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in L/C Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall will be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in L/C Disbursements; provided that (ia) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall will be rescinded and the purchase price restored to the extent of such recovery, without interest, and (iib) the provisions of this subsection shall paragraph (4) will not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, participant other than to the Borrower or any other Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall paragraph (4) apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d5) Subject to the priorities set forth in Section 2.18(3) above, if any Lender, by exercising any right of set-off or counterclaim or otherwise, obtains payment in respect of any principal of or interest on any of its Refinancing Term Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Refinancing Term Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion will purchase (for cash at face value) participations in the Refinancing Term Loans of other Lenders to the extent necessary so that the benefit of all such payments will be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Refinancing Term Loans; provided that (a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations will be rescinded and the purchase price restored to the extent of such recovery, without interest, and (b) the provisions of this paragraph (5) will not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Refinancing Term Loans to any assignee or participant other than to the Borrower or any other Subsidiary or Affiliate thereof (as to which the provisions of this paragraph (5) apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(6) Unless the Administrative Agent shall have has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including 7) If any Lender fails to make any payment required to be made by it pursuant to Section 2.05(4) or (5), 2.06(2) or 2.18(6), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.18Sections 2.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds. Each such payment shall be made without condition or deduction for any defense, free and clear of any defensesrecoupment, rights of set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars (or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposure; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Alternate Currency Loans or Loans denominated in Canadian Dollars or Alternate Currency Letters of Credit or Letters of Credit denominated in an Alternative CurrencyCanadian Dollars, in the applicable currency of such Loans or Letters of Credit). Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except with respect to principal of and interest on Loans denominated in a Foreign Currency, the Borrower shall make each payment or prepayment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) in Dollars prior to 1:00 p.m. 12:00 noon, New York City time, on the date when duedue or the date fixed for any prepayment hereunder and all payments with respect to principal and interest on Loans denominated in a Foreign Currency shall be made in such Foreign Currency not later than the local time specified by the Administrative Agent on the dates specified herein, in each case, in immediately available funds, free and clear of any defenseswithout setoff, rights of set-off, recoupment or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its applicable office or offices as described in an Administrative Questionnaire provided by the Payment OfficeAdministrative Agent to the Borrowers from time to time, except payments to be made directly to the Issuing Bank Banks or the Swingline Lender Lenders as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Without limiting the generality of the foregoing, the Administrative Agent may require that any payments hereunder shall due under this Agreement be made in Dollars orthe United States. Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or if for any other reason the Borrower is not able to make payment to the extent expressly set forth Administrative Agent for the account of the Lenders in Section 2.22such Original Currency, then all payments to be made by such Borrower hereunder in such currency shall instead be made when due in Dollars in an amount equal to the applicable Alternative CurrencyDollar Equivalent (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrower takes all risks of the imposition of any such currency control or exchange regulations.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunderhereunder not constituting (i) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower) or (ii) a mandatory prepayment (which shall be applied in accordance with Section 2.11), such funds shall be applied as follows: ratably first, to all fees and reimbursable expenses of pay any fees, indemnities, or expense reimbursements (other than those described in the next clause second), including amounts then due to the Administrative Agent and each Issuing Bank from the Borrower, second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower, third, to pay interest then due and payable pursuant to any of on the Loan Documents; secondLoans ratably, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all prepay principal of on the Loans and unreimbursed LC Disbursements then due and payable hereunderratably, pro rata fifth, to pay in Dollars to the parties entitled thereto based on their respective pro rata shares Administrative Agent a Dollar Equivalent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations and sixth, to the payment of any other Obligation due to the Administrative Agent or any Lender by the Borrower. Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such principal Loan Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless an Event of Default is in existence, none of the Administrative Agent or any Lender shall apply any payment which it receives to any Term Benchmark Loan, except (x) on the expiration date of the Interest Period applicable to any such Term Benchmark Loan or (y) in the event, and unreimbursed LC Disbursementsonly to the extent, that there are no outstanding ABR Loans and, in any event, the Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations.
(c) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of the Borrower maintained with the Administrative Agent. The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of the Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder Banks pursuant to the terms hereof or any other Loan Document (including any date that is fixed for prepayment by notice from the Borrower to the Administrative Agent pursuant to Section 2.11(b)), notice from the Borrower that the Borrower will not make such paymentpayment or prepayment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater applicable Overnight Rate.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Federal Funds Rate Administrative Agent, the Swingline Lender or an Issuing Bank to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and a rate application to, any future funding obligations of such Lender under any such Section; in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit denominated in an Alternative Currency)its discretion.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment or prepayment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.15, 2.16 or 2.19 or 2.20, or otherwise) prior to 1:00 p.m. 12:00 noon, Local Time, on the date when duedue or the date fixed for any prepayment hereunder, in immediately available funds, free and clear of any defenses, rights of without set-off, recoupment or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Applicable Agent for the account of the Lenders to such account as the Applicable Agent shall from time to time specify in one or more notices delivered to the Administrative Agent at the Payment OfficeBorrower, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16, 2.19 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in Dollars orUS Dollars. Any payment required to be made by any Agent hereunder shall be deemed to have been made by the time required if such Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by such Agent to make such payment.
(b) If At any time that payments are not required to be applied in the manner required by Section 7.3, if at any time insufficient funds are received by the Agents from any Borrower (or from the Administrative Borrower as guarantor of the Obligations of such Borrower pursuant to Article IX) and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from such Borrower hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable from such Borrower hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Administrative Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower each Borrower’s rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative an Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative such Agent for the account of the Lenders or the Issuing Bank hereunder Banks pursuant to the terms hereof or any other Loan Document (including any date there is fixed for prepayment by notice from a Borrower to the Administrative Agent pursuant to Section 2.10(b)), notice from a Borrower that the such Borrower will not make such paymentpayment or prepayment, the Administrative such Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative such Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to 2.4(c), 2.5(d) or (e), 2.6(b), 2.17(d) or 10.3(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of Letters each of Credit denominated the foregoing clauses (i) and (ii), in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder under the Loan Documents (whether of principal, interest, fees interest or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.182.16, 2.19 2.17 or 2.20, 2.18(c) or otherwise) prior to 1:00 p.m. before the time expressly required under the relevant Loan Document for such payment (or, if no such time is expressly required, before noon, Prevailing Eastern Time) on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts amount received after such time on any date day may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All The Borrower shall specify to the Administrative Agent the Facility to which any payment applies; and all such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (or such other address as may from time to time be designated by the Payment OfficeAdministrative Agent to the Borrower in writing), except payments to be made directly to the Issuing Bank or Letter of Credit Issuer as expressly provided herein and except payments to be made directly to the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.16, 2.192.17, 2.20 2.18 and 10.3 9.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments payment received by it for the account of any other Person to the appropriate recipient promptly following alter receipt thereof. If Unless otherwise specified herein, if any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall will be extended to the next succeeding Business Day, Day and, in the case of any if such payment accruing accrues interest, interest thereon shall will be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all pay interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements, then due hereunder, ratably among the Lenders in accordance with the amounts of principal and unreimbursed LC Disbursements, then due.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or any of its participations in LC Disbursements or any of its participations in Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, participations in LC Disbursements and participations in Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, participations in LC Disbursements and participations in Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, participations in LC Disbursements and participations in Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to Unless, before the date on which any payment is due to the Administrative Agent for the account of one or more Lender Parties hereunder, the Lenders or Administrative Agent receives from the Issuing Bank hereunder Borrower notice that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon on such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, each relevant Lender Party the amount or amounts duedue to it. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, Lender Party severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank Party with interest thereon, for each day from and including the date day such amount is distributed to it to but excluding the date of payment to day it repays the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender fails to make any payment required to be made by it pursuant to Section 2.04(e), 2.07(b), 2.19(d) or 9.03(c), the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Radian Group Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section Sections 2.18, 2.19 2.19, 2.20 or 2.2010.3, or otherwise) prior to 1:00 12:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxesTaxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If All payments of Obligations shall be made in Dollars, except for Loans funded, and reimbursement obligations with respect to Letters of Credit issued, in Alternate Currencies, which shall be repaid, including interest thereon, in the applicable Alternate Currency.
(c) Subject to the terms of Section 8.2, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain any amounts from the Borrower, such Lender shall apply such payments to the Obligations payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans other Revolving Credit Exposure that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and other Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and other Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other Revolving Credit Exposure; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, interest and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or other Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.5(b), 2.6(b), 2.22(d) or (e) or 10.3(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15, 2.16 or 2.202.19, or otherwise) prior to 1:00 p.m. the time expressly required hereunder or under such other Loan Document for such payment or, if no such time is expressly required, prior to 12:00 noon, Local Time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Applicable Agent at for the Payment Officeaccount of the Lenders to such account as the Applicable Agent shall from time to time specify in one or more notices delivered to the Company, except that payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein shall be made directly to such parties and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16, 2.19 and 10.3 11.03 shall be made directly to the Persons entitled thereto. The Administrative Applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, Day and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in Dollars orUS Dollars. Any payment required to be made by any Agent hereunder shall be deemed to have been made by the time required if such Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by such Agent to make such payment.
(b) If at any time insufficient funds are received by the Agents from any Borrower (or from the Company as guarantor of the Obligations of such Borrower pursuant to Article X) and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from such Borrower hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable from such Borrower hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties. It is expressly agreed that the receipt by the Facility Agent or any Lender of any payment of principal of any Loans without an express reservation of the right to collect any interest accrued thereon will not terminate the obligation of the applicable Borrower with respect to such interest.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its US Tranche Revolving Loans, Spanish Tranche Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its US Tranche Revolving Credit Exposure Loans, Spanish Tranche Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the US Tranche Revolving Credit Exposure Loans, Spanish Tranche Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount amounts of principal of and accrued interest on their respective US Tranche Revolving Credit ExposureLoans, Spanish Tranche Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the each Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Administrative an Agent shall have received notice from the a Borrower prior to the date on which any payment is due to the Administrative such Agent for the account of the Lenders or the Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative such Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the applicable Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative such Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 11.03(c) then the Overnight Foreign Currency Rate Facility Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by any Agent for the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees interest or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.182.09, 2.19 2.11, 2.12, 2.14, 2.15 or 2.20, or otherwise2.16) prior to 1:00 p.m. p.m., New York City time (in the case of payments with respect to Multicurrency Loans, prior to 11:00 a.m., London time), in the city of the Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the case of amounts due in dollars, to the Administrative Agent at its offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and (ii) in the Payment Officecase of amounts due in any Foreign Currency, except payments to be made directly to the Issuing Bank or Administrative Agent, at the Swingline Lender as expressly provided herein and Administrative Agent’s Eurocurrency Payment Office for such currency, except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder (whether of principal, interest or otherwise) shall be made in Dollars the applicable currency specified elsewhere herein or, if no currency is specified, in dollars, it being understood and agreed that any repayment (including any partial prepayment) of a Loan denominated in an Agreed Currency shall be made in such Agreed Currency. Notwithstanding the foregoing provisions of this Section, if, after the making of any Borrowing in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Borrowing was made (the “Original Currency”) no longer exists or the Borrower is not able to make payment to the extent expressly set forth Administrative Agent for the account of the Lenders in Section 2.22such Original Currency, then all payments to be made by the applicable Alternative CurrencyBorrower hereunder in such currency shall instead be made when due in dollars in an amount equal to the Dollar Equivalent (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrower takes all risks of the imposition of any such currency control or exchange regulations.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all pay interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursementsthen due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute (or cause the Administrative Agent to distribute) to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Letters of Credit Loans denominated in an Alternative a Foreign Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(b), 2.17(d) or 10.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Sources: Loan Agreement (Moodys Corp /De/)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to (i) in the case of payments denominated in Dollars, 1:00 p.m. p.m., New York City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, recoupment or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent at its offices in New York City or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s Eurocurrency Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled theretoOffice for such currency. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or the Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments hereunder shall to be made by the Borrower hereunder in such currency shall instead be made when due in Dollars or, in an amount equal to the extent expressly set forth in Section 2.22Dollar Amount (as of the date of repayment) of such payment due, it being the applicable Alternative Currencyintention of the parties hereto that the Borrower takes all risks of the imposition of any such currency control or exchange regulations.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursementsthen due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of the Borrower maintained with the Administrative Agent. The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Administrative Agent to charge any deposit account of the Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Letters of Credit Loans denominated in an Alternative a Foreign Currency).
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. (i) in the case of payments denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agent’s Foreign Currency Payment Office for such currency, in each case on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii) to the Administrative Agent at its Domestic Payment Office or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s Foreign Currency Payment OfficeOffice for such currency, except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments hereunder shall to be made by such Borrower hereunder in such currency shall instead be made when due in Dollars or, in an amount equal to the extent expressly set forth in Section 2.22Dollar Amount (as of the date of repayment) of such payment due, it being the applicable Alternative Currencyintention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) [Intentionally omitted].
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(di) Unless the Administrative Agent shall have received notice from the relevant Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Banks hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Letters of Credit Loans denominated in an Alternative a Foreign Currency).
(ii) With respect to any payment that the Administrative Agent makes for the account of the Lenders or any Issuing Bank hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such Issuing Bank, in same day funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or Issuing Bank with respect to any amount owing under this clause (e)(ii) shall be conclusive, absent manifest error.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such ▇▇▇▇▇▇ and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Banks to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or
Appears in 1 contract
Sources: Credit Agreement (Tapestry, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Each of the Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 12:00 noon, Local Time (4:00 p.m., New York City time, in the case of Swingline Dollar Loans and 2:00 p.m. London time, in the case of Swingline Foreign Currency Loans), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without set off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits applicable offices set forth in Section 9.01, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of (i) principal or interest in respect of any Loan shall be made in Dollars orthe currency in which such Loan is denominated, (ii) reimbursement obligations shall be made in the currency in which the Letter of Credit in respect of which such reimbursement obligation exists is denominated or (iii) any other amount due hereunder or under another Loan Document shall be made in Dollars. Any payment required to be made by the extent expressly set forth Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall at or before such time, have taken the necessary steps to make such payment in Section 2.22, accordance with the applicable Alternative Currencyregulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements, Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements, Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by any of the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower Each of the Borrowers consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Applicable Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Applicable Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Applicable Borrower will not make such payment, the Administrative Agent may assume that the Applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Applicable Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, (i) at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit an amount denominated in Dollars) and (ii) the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount (in the case of an Alternative amount denominated in a Foreign Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Scansource Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Dis- bursements to any assignee or participant, other than to the Borrower or any Subsidiary or any Affiliate thereof of the Borrower (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16, or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 10.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All Except as provided in Section 2.05(e), all payments hereunder under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from the Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided , that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.19, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. 12:00 noon (Atlanta, Georgia time), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.19 and 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to and may be made via automated debit of Borrowers’ checking accounts with the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyAdministrative Agent or via wire transfer.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principalprincipal of Loans, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection Section 2.21(c) shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection Section 2.21(c) shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Parent Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower applicable Borrower(s) will not make such payment, the Administrative Agent may assume that the Borrower has applicable Borrower(s) have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the applicable Borrower has have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.5(b), 2.6(b), 2.21(d), 2.23(d), (e), or (f), or 10.3(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Energysouth Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.18Sections 2.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Applicable Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Applicable Administrative Agent at to the Payment Officeapplicable account designated to the Borrower by the Applicable Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Applicable Administrative Agent shall distribute any such payments received by it for the account of any other Person person to the |US-DOCS\123898161.25157781893.13|| appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars (or, to in the extent expressly set forth case of Alternate Currency Loans (including interest thereon) or Alternate Currency Letters of Credit, in Section 2.22, the applicable Alternative Alternate Currency). Any payment required to be made by any Administrative Agent hereunder shall be deemed to have been made by the time required if such Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by such Administrative Agent to make such payment.
(b) If at With respect to any time insufficient funds are proceeds of Collateral received by and available to the any Administrative Agent to pay fully all amounts (whether as a result of any realization on the Collateral, any setoff rights, any distribution in connection with any proceedings or other action of any Loan Party in respect of Debtor Relief Laws or otherwise and whether received in cash or otherwise) (i) not constituting (A) a specific payment of principal, unreimbursed LC Disbursementsinterest, interest fees or other sum payable under the Loan Documents (which shall be applied on a pro rata basis among the relevant Lenders under the Class of Loans being prepaid as specified by the Borrower) or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (ii) after an Event of Default has occurred and fees then due hereunderis continuing and any Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied as follows: applied, subject to the provisions of any applicable Intercreditor Agreement, ratably first, to all fees pay any fees, indemnities, or expense reimbursements including amounts then due to any Administrative Agent, the Collateral Agent and reimbursable expenses of any Issuing Bank from the Administrative Agent Borrower, second, to pay any fees, indemnities or expense reimbursements then due to the Lenders (in their capacities as such) from the Borrower, third, to pay interest (including post-petition interest, whether or not an allowed claim in any claim or proceeding under any Debtor Relief Laws) then due and payable pursuant to any of on the Loan Documents; secondLoans ratably, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all repay principal of on the Loans and unreimbursed LC Disbursements then due L/C Disbursements, to Cash Collateralize all outstanding Letters of Credit, and payable hereunderany other amounts owing with respect to Secured Cash Management Agreements, pro rata Secured Hedge Agreements and Secured Bilateral Letter of Credit Agreements ratably; provided, that amounts which are applied to Cash Collateralize outstanding Letters of Credit that remain available after expiry of the applicable Letter of Credit shall be applied in the manner set forth herein and fifth, to the parties entitled thereto based on their respective pro rata shares payment of such principal and unreimbursed LC Disbursementsany other Obligation due to any Secured Party by the Borrower.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its Term Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of such Class and accrued interest and fees thereon than the proportion received by any other Lender with respect entitled to its Revolving Credit Exposurereceive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Credit Exposure Facility Loans, L/C Disbursements and Swingline Loans of such Class of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the all such Lenders ratably in accordance with the aggregate principal amount of principal each such Lender’s respective Term Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline Loans of such Class and accrued interest on their respective Revolving Credit Exposurethereon; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection clause (c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than |US-DOCS\123898161.25157781893.13|| participant and (iii) nothing in this clause (c) shall be construed to limit the Borrower or any Subsidiary or Affiliate thereof (as to which applicability of Section 2.18(b) in the provisions of this subsection shall apply)circumstances where Section 2.18(b) is applicable in accordance with its terms. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Applicable Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the such Administrative Agent for the account of the relevant Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the such Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Applicable Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the such Administrative Agent, at the greater of the Federal Funds NYFRB Rate and a rate determined by the such Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) Subject to Section 2.24, if any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), Section 2.05(d) or (e), 2.06, or 2.18(d), then the Overnight Foreign Currency Rate Applicable Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Applicable Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of Letters each of Credit denominated clauses (i) and (ii) above, in an Alternative Currency)any order as determined by the Applicable Administrative Agent in its discretion.
Appears in 1 contract
Sources: Credit Agreement (Millerknoll, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Except as may be reasonably specified on reasonable notice by the Administrative Agent as it from time to time deems necessary or appropriate with respect to any Committed Currency, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) from a location in the United States prior to 1:00 p.m. 12:00 noon, New York City time, on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at 270 ▇▇▇▇ ▇▇▇▇▇▇, except ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇cept payments to be made directly to the Issuing Bank Banks or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, dollars or the applicable Alternative Committed Currency, as the case may be.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, Banks as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent in accordance with banking industry rules on interbank compensation (including for the Overnight Foreign Currency Rate in the case account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (NCR Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees interest or reimbursement of LC Disbursementsfees, or of amounts payable under Section 2.18Sections 2.13, 2.19 2.14 or 2.202.15, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative AgentAgent (acting at the Direction of the Required Lenders), be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Credit Event was made and (ii) to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank or applicable account designated to the Swingline Lender as expressly provided herein and Borrowers by the Administrative Agent, except that payments pursuant to Sections 2.182.13, 2.192.14, 2.20 2.15 and 10.3 9.05 shall be made directly to the Persons persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder made under the Loan Documents shall be made in Dollars orDollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the extent expressly set forth in Section 2.22, regulations or operating procedures of the applicable Alternative Currencyclearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by At all times when Section 2.16(c) does not apply and available except as otherwise expressly provided herein, monies to be applied to the Administrative Agent Obligations, whether arising from payments by the Loan Parties, realization on Collateral, setoff, or otherwise, shall be allocated as follows (subject in all respects to Permitted Prior Liens and the Carve-Out):
(i) First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including attorney costs and fees and expenses of Agents payable under Section 9.05 and amounts payable under Section 2.13, 2.14 or 2.15) payable to the Agents in their capacity as such, until paid in full;
(ii) Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including attorney costs and fees and expenses of Specified Lender Advisors payable under Section 9.05 and amounts payable under Section 2.13, 2.14 or 2.15), ratably among them in proportion to the amounts described in this clause (ii) payable to them, until paid in full;
(iii) Third, to pay fully interest and principal due in respect of all Loans;
(iv) Fourth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Agents and the other Secured Parties (other than any Defaulting Lenders) on such date, ratably based upon the respective aggregate amounts of principalall such Obligations owing to the Agents and the other Secured Parties (other than any Defaulting Lenders) on such date, unreimbursed LC Disbursementsuntil paid in full;
(v) Fifth, interest ratably to pay any Obligations that are that are due and fees then due hereunderpayable to Defaulting Lenders, such funds until paid in full; and
(vi) Last, the balance, if any, to the Borrower or as otherwise required by Requirement of Law. Amounts shall be applied as follows: firstto each category of Obligations set forth above until paid in full and then to the next category. If amounts are insufficient to satisfy a category, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, they shall be applied on a pro rata to basis among the Lenders and Obligations in the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursementscategory.
(c) After the occurrence and during the continuation of an Event of Default, monies to be applied to the Obligations, whether arising from payments by the Loan Parties, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject, in all respects, to Permitted Prior Liens and the Carve-Out):
(i) First, (i) to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including attorney costs and fees and expenses of Agents payable under Section 9.03 and amounts payable under Section 2.13, 2.14 or 2.15) payable to the Agents in their capacity as such, until paid in full;
(ii) Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including attorney costs and fees and expenses of Specified Lender Advisors payable under Section 9.03 and amounts payable under Section 2.13, 2.14 or 2.15), ratably among them in proportion to the amounts described in this clause (ii) payable to them, until paid in full;
(iii) Third, to pay interest and principal due in respect of all Loans;
(iv) Fourth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Agents and the other Secured Parties (other than any Defaulting Lenders) on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Agents and the other Secured Parties (other than any Defaulting Lenders) on such date, until paid in full;
(v) Fifth, ratably to pay any Obligations that are that are due and payable to Defaulting Lenders, until paid in full;
(vi) Sixth, to pay any other Obligations until paid in full; and
(vii) Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Requirement of Law. Amounts shall be applied to each category of Obligations set forth above until paid in full and then to the next category. If amounts are insufficient to satisfy a category, they shall be applied on a pro rata basis among the Obligations in the category. The allocations set forth in this Section 2.16(c) are solely to determine the rights and priorities of the Agents and Lenders as among themselves, may be changed by agreement among the Agents and all of the Lenders without the consent of any Loan Party and are subject to Section 2.17 (regarding Defaulting Lenders). Appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section 2.16(c). This Section 2.16(c) is not for the benefit of or enforceable by any Loan Party.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its DIP Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure DIP Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect entitled to its Revolving Credit Exposurereceive the same proportion of such payment, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure DIP Loans of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the all such Lenders ratably in accordance with the aggregate principal amount of principal of each such Lender’s respective DIP Loans and accrued interest on their respective Revolving Credit Exposurethereon; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection clause (c) shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans to any assignee or participant, other than than, to the Borrower Parent or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply)) and (iii) nothing in this Section 2.16(c) shall be construed to limit the applicability of Section 2.16(b) in the circumstances where Section 2.16(b) is applicable in accordance with its terms. The Borrower consents Borrowers consent to the foregoing and agreesagree, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the any Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the applicable Borrower in the amount of such participation.
(de) Unless the Administrative Agent shall have received notice from the Lux Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the relevant Lenders or the Issuing Bank hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Lux Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the relevant Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(b), 2.03(d) or (e), 2.04, or 2.16(e), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section 2.16; in the case of Letters each of Credit denominated clauses (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Sources: Superpriority Senior Secured Debtor in Possession Credit Agreement (Mallinckrodt PLC)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Each of the Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 12:00 noon, Local Time (4:00 p.m., New York City time, in the case of Swingline Dollar Loans and 2:00 p.m. London time, in the case of Swingline Foreign Currency Loans), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without set off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits applicable offices set forth in Section 9.01, except payments to be made directly to the Issuing Bank or the any Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of (i) principal or interest in respect of any Loan shall be made in Dollars orthe currency in which such Loan is denominated, to (ii) reimbursement obligations shall be made in the extent expressly set forth currency in which the Letter of Credit in respect of which such reimbursement obligation exists is denominated (or as otherwise provided in Section 2.222.06(e)) or (iii) any other amount due hereunder or under another Credit Document shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall at or before such time, have taken the applicable Alternative Currencynecessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders without recourse or warranty from the other Lenders except as contemplated by Section 9.04 in respect of assignments to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by any of the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower Each of the Borrowers consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Applicable Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Applicable Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Applicable Borrower will not make such payment, the Administrative Agent may assume that the Applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Applicable Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, (i) at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Letters of Credit an amount denominated in Dollars) and (ii) the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount (in the case of an Alternative amount denominated in a Foreign Currency).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent or the Issuing Bank to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Sources: Credit Agreement (Scansource, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Borrowers shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC DisbursementsDisbursement) by noon Local Time, or of amounts payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of without set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices designated to the Payment OfficeBorrowers from time to time, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencydollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Parent or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents Borrowers consent to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the a Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
(f) All proceeds of any realization on the Collateral pursuant to the Collateral Documents and any payments received by the Administrative Agent or any Lender subsequent to and during the continuance of any Event of Default, subject to the obligations secured thereby, shall be allocated and distributed by the Administrative Agent as follows:
(i) First, to the payment of all fees, costs, expenses and other amounts owing to the Administrative Agent, including without limitation all reasonable attorneys’ fees, in connection with the Overnight Foreign Currency Rate enforcement of the Collateral Documents and otherwise administering the Loan Documents;
(ii) Second, to payment of any Secured Obligations pro rata among those parties to whom such Secured Obligations are due in accordance with the case amounts owing to each of Letters them, provided that the proceeds of Credit denominated any realization on the Collateral may be altered by the Administrative Agent, with the consent of the Lenders, in an Alternative Currency)a manner to maximize the recovery by all Lenders and their Affiliates and which would not decrease the recovery of any Lender; and
(iii) Third, to the Borrowers, their Subsidiaries or such other Person as may be legally entitled thereto The order and priority set forth in this Section 2.18(f) and the related provisions are set forth solely to determine the rights and priorities of the Administrative Agent and the Lenders as among themselves, and the order and priority may at any time be changed by the Lenders without the consent of the Borrowers, provided that the order or priority of any payment to the Administrative Agent may only be changed with the consent of the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Tesco Corp)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. (i) in the case of payments made for Obligations denominated in Euro or Sterling, 9:00 a.m. (New York City time) and (ii) in the case of payments made for Obligations denominated in any other Currency, 12:00 noon (New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without set off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Agent’s Office, except payments to be made directly to the any Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder amounts owing under this Agreement (including facility fees, but not including principal of, and interest on, Loans denominated in any Foreign Currency, which are payable in such Foreign Currency) are payable in Dollars. Notwithstanding the foregoing, if a Borrower shall fail to pay any principal of any Loan when due (whether at stated maturity, by acceleration, by mandatory prepayment or otherwise), the unpaid portion of such Loan shall, if such Loan is not denominated in Dollars, automatically be redenominated in Dollars on the due date thereof (or, if such due date is a day other than the last day of the Interest Period therefor, on the last day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of such redenomination and such principal shall be made payable on demand; and if a Borrower shall fail to pay any interest on any Loan that is not denominated in Dollars, such interest shall automatically be redenominated in Dollars on the due date therefor (or, if such due date is a day other than the last day of the Interest Period therefor, on the last day of such Interest Period) in an amount equal to the extent expressly set forth in Section 2.22, Dollar Equivalent thereof on the applicable Alternative Currencydate of such redenomination and such interest shall be payable on demand.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all on a pari passu basis, towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to and the Specified Swap Obligations then due, ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and principal, unreimbursed LC DisbursementsDisbursements and Specified Swap Obligations then due to such parties. Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section 2.18(b).
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting LenderLender or Disqualified Institution) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawApplicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to, Section 2.04(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 8.06, then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of Letters each of Credit denominated clause (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Global Trust II, Inc.)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Letter of Credit Disbursements, or of amounts payable under Section 2.18Sections 3.01, 2.19 or 2.20, 3.02 and 5.01 or otherwise) prior to 1:00 p.m. at or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, not later than 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without setoff or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the reasonable discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., Waukesha, WI, 53186, Attn: ▇▇▇▇▇▇▇▇ Loan Operations, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.183.01, 2.193.02, 2.20 5.01 and 10.3 13.01 shall be made directly to the Agent for the benefit of to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Agent for the benefit of the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Letter of Credit Disbursements, interest and fees then due hereunder, such funds shall be applied in the manner as follows: firstprovided in Section 2.09(c) or 11.11 hereof, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; secondas applicable, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursementsthereto.
(c) If any Lender shall, by exercising any right of set-off setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Letter of Credit Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in Letter of Credit Exposure Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in Letter of Credit Exposure Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in Letter of Credit ExposureDisbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower any Loan Party pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in Letter of Credit Exposure Disbursements to any assignee or participant, other than to the Borrower Parent or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower Each of Parent and each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, law that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Loan Parties rights of set-off setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower a Loan Party in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Lead Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Lead Borrower will not make such payment, the Administrative Agent may assume that the Lead Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Lead Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.02(f), 2.10(d), 2.12(d) or 2.13(d), then the Overnight Foreign Currency Rate Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower Company shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. p.m., Houston, Texas time, on the date when due, in immediately available funds, free and clear of without set off or counterclaim (but without prejudice to the Company’s rights with respect to any defenses, rights of set-off, counterclaim, or (subject to Section 2.20) withholding or deduction of taxesDefaulting Lender). Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Officeits offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, andthe maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any payment accruing interestof principal pursuant to the preceding two sentences, interest thereon shall be made payable at the then applicable rate for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Company pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents Company consent to the foregoing and agreesagree, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Company rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Company in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower Company prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the an Issuing Bank hereunder that the Borrower Company will not make such payment, the Administrative Agent may assume that the Borrower Company has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower Company has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.06(d) or 2.06(e), 2.07(b), 2.18(d) or 9.03(b), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of Letters each of Credit denominated clause (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18Sections 3.01, 2.19 or 2.203.04 and 3.05, or otherwise) at or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 1:00 p.m. 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, without setoff or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the reasonable discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Administrative Agent’s Office, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.183.01, 2.193.04, 2.20 3.05 and 10.3 11.04 shall be made directly to the Administrative Agent for the benefit of to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Administrative Agent for the benefit of the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder under each Loan Document shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative CurrencyDollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the manner as follows: firstprovided in Section 2.09(c) or 10.02 hereof, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; secondas applicable, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursementsthereto.
(c) If any Lender shall, by exercising any right of set-off setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, Applicable Law that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Loan Parties rights of set-off setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower a Loan Party in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.02(f), 2.10(d), 2.12(d) or 2.13(d), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Administrative Agent for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Revolving Credit Agreement (Keystone Automotive Operations Inc)
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a1) The Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.182.14, 2.19 2.15 or 2.202.16, or otherwise) prior to 1:00 p.m. 2:00 p.m., Local Time, or such other time as may be expressly provided herein, on the date when due, in immediately available fundsfunds and in the appropriate currency, free and clear of any defenses, rights of set-off, without set off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, in the Payment Officecase of payments denominated in dollars, and at its offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, in the case of payments denominated in the specific currencies referred to in the definition of “Approved Currencies”, and to its offices as it may designate from time to time by notice to the Borrowers, in the case of payments denominated in any other Approved Currency, except payments to be made directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.14, 2.192.15, 2.20 2.16 and 10.3 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars or, to the extent expressly set forth in Section 2.22, the applicable Alternative Currency.
(ba) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to ratably among the Lenders based on their respective pro rata shares parties entitled thereto in accordance with the amounts of such interest and fees; fees then due to such parties, and fourth(ii) second, to all towards payment of principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of such principal and unreimbursed LC DisbursementsDisbursements then due to such parties.
(cb) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit ExposureLoans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph shall not be construed to apply to any payment made by the Borrower Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower Company or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph shall apply)) and (iii) the provisions of this paragraph shall not apply to any payments made to those Lenders who choose not to extend the Maturity Date of their Loans or Commitments pursuant to Section 2.22 hereof on such non-extended Maturity Date except to the extent any such non-extending Lender receives payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other such non-extending Lender, in which case such Lender shall purchase participations as described above solely from other such non-extending Lenders to the extent necessary so that the benefit of all such payments made on such date shall be shared by such non-extending Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline Loans. The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(dc) Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the applicable Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation compensation.
(including d) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), then the Overnight Foreign Currency Rate Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of Letters each of Credit denominated clause (i) and (ii) above, in an Alternative Currency)any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Unless otherwise specified, each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section 2.182.15, 2.19 2.16 or 2.202.17, or otherwise) prior to 1:00 p.m. 2:00 p.m., New York City time, on the date when due, in immediately available funds, free and clear of without condition or deduction for any defensesdefense, rights of recoupment, set-off, off or counterclaim, or (subject to Section 2.20) withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Term Administrative Agent or the Revolving Administrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to, in the case of payments made in respect of the Term B Loan Facility, the Term Administrative Agent or, in the case of payments made in connection with the Revolving Facility, the Revolving Administrative Agent, to the applicable account designated to the Relevant Borrower by the Term Administrative Agent at or the Payment OfficeRevolving Administrative Agent, as applicable; except payments to be made directly to the applicable Issuing Bank or the applicable Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.182.15, 2.192.16, 2.20 2.17 and 10.3 9.05 shall be made directly to the Persons entitled thereto. The Term Administrative Agent or the Revolving Administrative Agent, as applicable, shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder of (i) principal or interest in respect of any Loan, (ii) reimbursement obligations with respect to any Letter of Credit or (iii) any other amount due hereunder or under any other Loan Document shall be made in Dollars, except that principal payments, interest payments and reimbursement obligations in respect of Loans and Letters of Credit denominated in currencies other than Dollars orshall be payable in the applicable currency. Any payment required to be made by the Term Administrative Agent or the Revolving Administrative Agent, as applicable, hereunder shall be deemed to have been made by the time required if the Term Administrative Agent or the Revolving Administrative Agent, as applicable, shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Term Administrative Agent or the Revolving Administrative Agent, as applicable, to the extent expressly set forth in Section 2.22, the applicable Alternative Currencymake such payment.
(b) If at any time insufficient funds are received by and available to the Term Administrative Agent or the Revolving Administrative Agent, as applicable, from a Borrower to pay fully all amounts of principal, unreimbursed LC L/C Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be applied as follows: (i) first, to all fees and reimbursable expenses towards payment of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable from such Borrower hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to ratably among the parties entitled thereto based on their respective pro rata shares in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC DisbursementsL/C Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim counterclaim, through the application of any proceeds of Collateral or otherwise, obtain payment in respect of any principal of or interest on any of its Term B Loans, Revolving Facility Loans or participations in LC L/C Disbursements or Swingline Loans that would result resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term B Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit ExposureLender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term B Loans, Revolving Credit Exposure Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term B Loans, Revolving Credit ExposureFacility Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection paragraph (c) shall not be construed to apply to any payment made by the a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure Loans or participations in L/C Disbursements to any assignee or participant, other than to the any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection paragraph (c) shall apply). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the such Borrower in the amount of such participation.
(d) Unless the Term Administrative Agent or the Revolving Administrative Agent, as applicable, shall have received notice from the Relevant Borrower prior to the date on which any payment is due to the Term Administrative Agent or the Revolving Administrative Agent, as applicable, for the account of the Lenders or the applicable Issuing Bank hereunder that the such Borrower will not make such payment, the Term Administrative Agent or the Revolving Administrative Agent, as applicable, may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may beapplicable, the amount or amounts due. In such event, if the such Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may beapplicable, severally agrees to repay to the Term Administrative Agent or the Revolving Administrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Term Administrative Agent or the Revolving Administrative Agent, as applicable, at the greater of the Federal Funds Effective Rate and a rate determined by the Term Administrative Agent or the Revolving Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation compensation.
(including e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(c) or (d), 2.06(b) or 2.18(d), then the Overnight Foreign Currency Rate Term Administrative Agent or the Revolving Administrative Agent, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the case Term Administrative Agent or the Revolving Administrative Agent, as applicable, for the account of Letters of Credit denominated in an Alternative Currency)such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Dresser Inc)