Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by such Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrowers 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 8 contracts

Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, Section 2.16 or Section 2.17, 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, (i) except with respect to principal and interest on Loans denominated in an Alternative Currency, prior to ~~2:00~~ 3:00 p.m., New York City ~~time~~time and (ii) with respect to principal and interest on Loans denominated in an Alternative Currency, the Applicable Time), on the date when due, in immediately available funds, without setoff or counterclaim. 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~~thereon (for the avoidance of doubt any amounts received after 3:00 p.m. or the Applicable Time, as applicable, on such day shall not constitute a Default or Event of Default, so long as such funds are actually received on the date when due). All such payments shall be made to such account as may be specified by the Applicable Administrative Agent, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to ~~Sections~~ Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Applicable 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 (other than payments on the ~~Eurocurrency~~ Term Rate Loans) 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. If any payment on a ~~Eurocurrency~~ Term Rate Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan (or of interest thereon) shall be made in the currency in which such Loan is denominated, ~~all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars,~~ and all other payments under each Loan Document shall be made in ~~dollars~~Dollars. (b) If at any time insufficient funds are received by and available to the Applicable Administrative Agent to pay fully all amounts of principal~~, unreimbursed LC Disbursements~~, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans~~ of such Class and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans~~ of such Class of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans,~~ of such Class; 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for ~~the~~ any permitted assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or ~~participant~~ participant, including any payment made or deemed made in connection with Section 2.19, 2.24 or 9.02 or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower in the amount of such participation. For purposes of clause (d) of the definition of “Excluded Taxes,” a Lender that acquires a participation pursuant to this Section 2.18(c) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) or Loan(s) (as applicable) to which such participation relates. (d) Unless the Applicable Administrative Agent shall have received notice from ~~the Borrower~~ Holdings prior to the date on which any payment is due to the Applicable Administrative Agent for the account of the Lenders ~~or the Issuing Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Applicable Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the ~~Lenders or Issuing Banks, as the case may be~~Lenders, 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 Applicable Administrative Agent, at the greater of the ~~Federal Funds Effective~~ Overnight Bank Funding Rate and a rate determined by the Applicable Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.06(a), ~~2.05(e) or 2.05(f~~Section 2.06(b), ~~2.06(a) or (b),~~ Section 2.18(d) or Section 9.03(c), then the Applicable Administrative Agent may, in its discretion and in the order determined by the Applicable Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 6 contracts

Samples: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document 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 (i) first, towards payment ~~of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts~~ of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and ~~Swingline Loans and~~ accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee~~ Eligible Assignee, to the Borrower or ~~participant~~ any Subsidiary or other Affiliate thereof in a transaction that complies with the terms of Section 9.04(e) or (~~C) any disproportionate payment obtained by a Lender of any Class~~ f), as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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 6 contracts

Samples: Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo Technologies, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ setoff, recoupment, defense 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ Holdings or the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The Borrowers consent~~ Holdings and 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 Holdings or the ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or the ~~Borrowers~~ Borrower, as applicable, in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from Holdings or 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 Banks hereunder that Holdings or the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that Holdings or the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if Holdings or the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.05(e), ~~2.05(e) or~~ Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

Appears in 5 contracts

Samples: First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, or otherwise) at or 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxx Xxxxxxxxxx Xxxx, 3/Ops2, Newark, DE 19713 (or such other office as from time to time the Administrative Agent shall designate by notice to the Borrower), except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or ~~otherwise~~otherwise except as expressly provided in this Agreement, 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ Holdings, the Borrower or any Subsidiary pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ (but excluding, for the avoidance of doubt, prepayments pursuant to Section 2.11(i)) to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e) or 2.05(f),~~ 2.06(a~~) or (b~~), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ Sections until all such unsatisfied obligations are fully ~~paid~~ paid. If any Revolving 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(a), 2.18(d) or 9.03(c), 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 Revolving Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Revolving Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated non-interest bearing account as cash collateral for, and ~~to be applied~~ application to, any future funding obligations of such Revolving Lender under such Sections, in the case of each of (i) and (ii) above, in any ~~such Section~~order as determined by the Administrative Agent in its discretion.

Appears in 5 contracts

Samples: First Lien Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Corp), First Lien Credit Agreement (Select Medical Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 ~~(i)~~ first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and ~~(ii)~~ second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any Class of its ~~Revolving Loans, Term~~ Loans or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans of such Class and participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans of such Class 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 Loans, Term~~ Loans of such Class and participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 5 contracts

Samples: Credit Agreement (Virtu Financial, Inc.), Restatement Agreement (Virtu Financial, Inc.), Restatement Agreement (Virtu Financial, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it ~~under any Loan Document~~ hereunder (whether of principal, interest, fees or reimbursement of LC L/C Disbursements, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) ~~prior to the time expressly required hereunder~~ without condition or ~~under such other Loan Document~~ deduction for ~~such payment (or~~any counterclaim, ~~if no such time is expressly required~~defense, recoupment or setoff prior to 2:00 p.m.~~, New York City time)~~, on the date when due, in immediately available funds~~, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent Office, except payments to be made directly to ~~any~~ an Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled ~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein~~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 ~~(other than payments on the Eurocurrency Loans) under any Loan Document~~ 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in dollars. (b) If at any time prior to an exercise of remedies pursuant to Article VII (or prior to the date of termination of the Commitments in full and acceleration of the Loans pursuant to Article VII), 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC L/C Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC L/C Disbursements then due to such parties. (ci) After the exercise of remedies provided for in Article VII (or after the automatic termination of the Commitments and acceleration of the Loans pursuant to Article VII), any amounts received on account of the Obligations shall be applied by the Administrative Agent as follows: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article II) payable to the Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and fees payable pursuant to Sections 2.11(a) and (b)) payable to the Lenders and the Issuing Banks (including fees, charges and disbursements of counsel to the respective Lenders and the Issuing Bank arising under the Loan Documents), ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid fees pursuant to Sections 2.11(a) and (b) and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Cash Management Obligations, and to the Administrative Agent for the account of the Issuing Banks, to Cash Collateralize that portion of Letter of Credit Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Section 2.05, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them and the aggregate amount of Letter of Credit Obligations that have not been Cash Collateralized; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law; provided, that (x) amounts received from the European Borrower or in respect of Collateral securing solely the European Obligations shall not be applied against any Obligations that are not European Obligations and (y) Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other U.S. Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section. (ii) Subject to Section 2.05, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. (iii) Notwithstanding the foregoing, Cash Management Obligations and Obligations arising under Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not, prior to the time of the making of any such distribution, received written notice thereof, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VIII hereof for itself and its Affiliates as if a “Lender” party hereto. (d) If any Lender shall, by exercising any right of setoff 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 L/C Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC L/C Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender (except as a result of such Lender holding European Obligations), then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans and participations in LC 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 Loans, Term~~ Loans and participations in LC 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~~ interest, and (ii) the provisions of this ~~paragraph~~ clause shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ a Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC L/C Disbursements or and Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in ~~the Applicable Rate in respect of Loans of Lenders that have consented to any such extension~~accordance with Section 9.04. The Borrowers consent to the foregoing and ~~agrees~~agree, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements in Obligations that are recourse to such Borrower pursuant to the Loan Documents may exercise against ~~the Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Borrower in the amount of such participation. (de) 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 relevant Issuing ~~Banks~~ Bank hereunder that ~~the Borrowers~~ a Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or such Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the relevant Issuing ~~Banks~~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~~ 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~~ Overnight Rate. A notice of ~~the Federal Funds Effective Rate and a rate determined by~~ the Administrative Agent ~~in accordance~~ to any Lender or the Borrower with ~~banking industry rules on interbank compensation~~respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error. (ef) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c)~~2.04, ~~2.05(e)~~ 2.05, 2.06, 2.17 or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~9.03, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ Sections until all such unsatisfied obligations are fully ~~paid and/or (ii) hold~~ paid. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments are several and not joint. The failure of any Lender to make any Loan, to fund any such ~~amounts in a segregated account as cash collateral for~~participation or to make any payment 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 ~~be applied to~~so make its Loan, ~~any future funding obligations of such Lender under any such Section~~to purchase its participation or to make its payments.

Appears in 4 contracts

Samples: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 relative aggregate ~~amount~~ amounts of principal of and accrued interest on their ~~respective~~ Revolving Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 4 contracts

Samples: Credit Agreement (Donnelley R H Inc), Credit Agreement (R H Donnelley Corp), Credit Agreement (Dex Media Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. Any amounts received after such time on any date may, in the discretion of the Term 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 such account as may be specified by the Term Administrative Agent, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Term 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in~~ dollars, all payments of accrued interest payable on a Loan ~~or LC Disbursement~~ shall be made in dollars, and all other payments under each Loan Document shall be made in dollars. (b) If at any time insufficient funds are received by and available to the Term Administrative Agent to pay fully all amounts of principal~~, unreimbursed LC Disbursements~~, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans,~~ Term ~~Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Term Loans~~, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans or participations in LC Disbursements or Swingline~~ Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans ~~or Revolving Commitments~~ of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower’s rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower in the amount of such participation. (d) Unless the Term Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Term Administrative Agent for the account of the Lenders ~~or the Issuing Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Term Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, as the case may be,~~ severally agrees to repay to the Term 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 Term Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Term Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e) or 2.05(f),~~ 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Term Administrative Agent may, in its discretion and in the order determined by the Term Administrative Agent (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Term Administrative Agent for the account of such 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 4 contracts

Samples: Term Loan Credit Agreement (Installed Building Products, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 ~~2.15~~2.17, ~~2.16~~ 2.18 or ~~2.17~~2.19, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections ~~2.15~~2.17, ~~2.16, 2.17~~ 2.18 or 2.19 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, under this Agreement and ~~all~~ each other ~~payments under each~~ Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) ~~If any~~ Except to the extent that this Agreement provides for payments to be disproportionately allocated to or retained by a particular Lender or group of Lenders (including in connection with the payment of interest or fees at different rates and the repayment of principal amounts of Term Loans at different times as a result of Refinancing Facility Agreements pursuant to Section 2.24), each Lender agrees that if it shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and ~~Swingline Loans and~~ accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term Loans and participations in LC Disbursements ~~and~~ or Swingline Loans; provided, ~~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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ 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 the application of funds arising from the existence of a Defaulting Lender), ~~(B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee~~ Eligible Assignee, other than to the Borrower or ~~participant~~ any Subsidiary or other Affiliate thereof in a transaction that does not comply with the terms of Section 2.26 or Section 9.04(e) or (~~C) any disproportionate payment obtained by a Lender~~ f), as applicable (as to which the provisions of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionthis paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower in the amount of such participation. Notwithstanding the foregoing, to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Subsidiary Loan Party shall be applied to any Excluded Swap Obligations of such Subsidiary Loan Party. (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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e~~2.05(d) or ~~2.05(f~~(f), 2.06(a) or (b), ~~2.18(d~~2.19(e), 2.20(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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. (f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any Compliance Certificate delivered under Section 5.01(c), shall prove to have been materially inaccurate, and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Total Leverage Ratio), then, if such inaccuracy is discovered prior to the termination of the Commitments and the repayment in full of the principal of all Loans and the reduction of the LC Exposure to zero, the Borrower shall pay to the Administrative Agent, for distribution to the Lenders and the Issuing Banks (or former Lenders and Issuing Banks) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement.

Appears in 4 contracts

Samples: Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 ~~2:00 p.m.~~12:00 noon, New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ condition or deduction for any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, under this Agreement and ~~all~~ each other ~~payments under each~~ Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and ~~Swingline Loans and~~ accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ Eligible Assignee, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase~~ Subsidiary or other Affiliate thereof in a transaction that does not comply with the ~~Applicable Rate in respect~~ terms of ~~Loans~~ Section 9.04(f) (as to which the provisions of ~~Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(d) or (e), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(a) or (b), ~~2.18(d~~2.16(e), 2.17(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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. (f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any compliance certificate delivered under Section 5.01(c), shall prove to have been materially inaccurate, and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Total Secured Net Leverage Ratio), then, if such inaccuracy is discovered prior to the termination of the Commitments and the repayment in full of the principal of all Loans and the reduction of the LC Exposure to zero, the Borrower shall pay to the Administrative Agent, for distribution to the Lenders and the Issuing Banks (or former Lenders and Issuing Banks) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement. (g) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (h) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 9.03 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 9.03 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 fund its participation or to make its payment under Section 9.03.

Appears in 4 contracts

Samples: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such ~~parties,~~ parties and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower’s rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (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(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 4 contracts

Samples: Credit Agreement (European Wax Center, Inc.), Credit Agreement (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~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 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) ~~first,~~ first towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) ~~second,~~ second towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 ~~Banks~~ Bank hereunder that ~~the Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(f), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d) or ~~9.03(c~~11.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 4 contracts

Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ Holdings or the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The~~ Holdings and the 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 Holdings or the Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or the ~~Borrowers~~ Borrowers, as applicable, in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from Holdings or 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 Banks hereunder that Holdings or the Borrowers will not make such payment, the Administrative Agent may assume that Holdings or the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if Holdings or the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (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(e~~) or~~ ), Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: Credit Agreement (New Whale Inc.), Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, premium, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 or fees thereon. All such payments shall be made to such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or ~~Swingline~~ the Swing Line Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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, premium, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of premium, principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of of, premium, if any, or interest or fees on any of its Revolving Loans, Term Loans or participations in Swing Loans or LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in Swing Loans or LC Disbursements and ~~Swingline Loans and~~ accrued interest or fees thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in Swing Loans or 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 and fees on their respective Revolving Loans, Term Loans and participations in Swing Loans or LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Swing Loans or LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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~~ Lenders, the Swing Line Lender or the Issuing Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the ~~Lenders~~ Lenders, the Swing Line Lender or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the ~~Lenders~~ Lenders, the Swing Line Lender or Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, Swing Line 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. (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(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: Credit Agreement (American Public Education Inc), Credit Agreement (Atlas Technical Consultants, Inc.), Credit Agreement (Atlas Technical Consultants, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ Holdings or the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The~~ Holdings and the 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 Holdings or the Borrowers rights of setoff and ~~counterclaim~~ counter-claim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or the ~~Borrowers~~ Borrowers, as applicable, in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from Holdings or 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 Banks hereunder that Holdings or the Borrowers will not make such payment, the Administrative Agent may assume that Holdings or the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if Holdings or the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (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(e~~) or~~ ), Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: First Lien Credit Agreement (New Whale Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it ~~under any Loan Document~~ hereunder (whether of principal, interest, ~~fees or~~ fees, reimbursement of LC ~~Disbursements,~~ Disbursements or of any amounts payable under Section ~~2.15~~5.10, ~~2.16~~ 5.11 or ~~2.17~~5.12, or otherwise) ~~prior to the time expressly required hereunder~~ or under ~~such~~ any other Loan Document ~~for such payment (or, if no such time is expressly required,~~ prior to ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 to such account or accounts as ~~may be specified by~~ the Administrative ~~Agent~~Agent shall designate from time to time, except that payments to be made directly to any Issuing ~~Bank or Swingline~~ Lender ~~shall be made~~ as expressly provided herein shall be so made and ~~except that~~ payments pursuant to Sections ~~2.15~~5.10, ~~2.16~~5.11, ~~2.17~~ 5.12 and ~~9.03~~ 12.05 shall be made directly to the Persons entitled thereto and payments pursuant to the 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~ extended, except as otherwise provided in the definition of the terms “Maturity Date” and “Interest Period”, to the next succeeding Business Day~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments ~~or prepayments of any~~ hereunder and under the other Loan Documents shall be made in ~~the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall~~ Dollars. Any payment required to be made ~~in dollars, all payments of accrued interest payable on a Loan~~ by the Administrative Agent hereunder or ~~LC Disbursement shall be made in dollars, and all~~ under any other ~~payments under each~~ Loan Document 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~~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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed~~ reimbursement of LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans or in respect of its participations in ~~LC Disbursements or Swingline Loans~~ any Letters of Credit resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon or its participations in Letters of Credit than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans and ~~participations in LC Disbursements and Swingline Loans~~ Letters of Credit of such other Lenders to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term~~ Loans and participations in ~~LC Disbursements and Swingline Loans,~~ Letters of Credit; 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 paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement or any other Loan Document (~~including~~ for the ~~application~~ avoidance of ~~funds arising~~ doubt, as it may be amended from ~~existence of a Defaulting Lender), (B~~time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or ~~participations in~~ LC ~~Disbursements or Swingline Loans~~ Exposure to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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~~ any Lender or ~~the~~ Issuing ~~Banks~~ Lender hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to ~~the Lenders~~ such Lender or Issuing ~~Banks~~Lender, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the applicable Lenders or and Issuing ~~Banks, as the case may be,~~ Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing ~~Bank~~ Lender, as applicable, 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~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender or Issuing Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~5.01(b), ~~2.05(e~~5.12(d) or ~~2.05(f), 2.06(a~~5.13(d) or ~~(b), 2.18(d) or 9.03(c)~~Article XI, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (notwithstanding any contrary provision hereof), ~~(i)~~ apply any amounts thereafter received by the Administrative Agent for the account of such Lender or Issuing Lender, as applicable, to satisfy such Lender’s or Issuing Lender’s, as applicable, obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 3 contracts

Samples: Five Year Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower Party shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC ~~Disbursements~~Disbursement, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 ~~2:00 p.m.~~11:00 a.m., ~~New York City~~ San Francisco time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except ~~payments~~ payment to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower Parties pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The Borrowers consent~~ Each Borrower Party 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 Borrowers~~ such Borrower Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Borrower Party in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from ~~the~~ a Borrower Party prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that ~~the Borrowers~~ such Borrower Party will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower Party has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Borrower Party has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e~~2.04(a) or ~~2.05(f), 2.06(a) or (b~~2.04(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section. (f) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 9.03(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 9.03(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 (except as provided herein with respect to a Defaulting Lender) 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 9.03(c).

Appears in 3 contracts

Samples: Third Amendment (Broadcom LTD), Second Amendment (Broadcom Cayman L.P.), Credit Agreement (Avago Technologies LTD)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Borrowers shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto 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 All payments by the Borrowers hereunder with respect to principal of and interest on Loans denominated in an Alternative Currency shall be made in such Alternative Currency to such account as may be specified by the Administrative Agent. Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ the 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The Borrowers consent to the foregoing and ~~agrees~~agree, 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 ~~Borrowers~~ Borrowers’ rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(e) or Section 2.04(f), ~~2.05(e~~Section 2.05(a) or ~~2.05(f~~Section 2.05(b), ~~2.06(a~~Section 2.17(d), Section 9.03(c) or ~~(b), 2.18(d) or 9.03(c~~Section 9.03(d), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

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

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each ~~Borrower~~ Loan Party shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., ~~New York City time~~Local Time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to ~~Sections~~ Section 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 All payments by any Co-Borrower hereunder with respect to principal of and interest on Loans shall, except as otherwise provided herein, be made in the currency of such Loan, and all other payments made hereunder shall be made in dollars, in each case to such account as may be specified by the Administrative Agent. Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment ~~on a Eurocurrency~~ hereunder or under any other Loan Document becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such ~~parties,~~ parties and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ any Co-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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The Borrowers consent~~ Each Co-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 Borrowers~~ such Co-Borrower’s rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Co-Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from ~~the~~ a Co-Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that ~~the Borrowers~~ such Co-Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Co-Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Co-Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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 (i) in the case of a payment due in dollars, the greater of the ~~Federal Funds Effective~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank ~~compensation~~compensation and (ii) in the case of a payment due in an Alternative Currency, the rate determined by the Administrative Agent to be the cost to it of funding such amount (which determination will be conclusive absent manifest error). (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(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: Second Amendment (Graftech International LTD), Credit Agreement (Graftech International LTD), Credit Agreement (Graftech International LTD)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~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 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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~~Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or ~~otherwise~~otherwise (including by exercise of its rights under Section 9.1(a)(viii) of the U.S. Security Agreement), 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 ~~Banks~~ Bank hereunder that ~~the Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(c), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d), 2.18(e) or ~~9.03(c~~11.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 3 contracts

Samples: Credit Agreement (Norcraft Companies Lp), Credit Agreement (Norcraft Companies Lp), Credit Agreement (Norcraft Companies Lp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document 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 (i) first, towards payment ~~of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts~~ of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ Eligible Assignee, to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase~~ Subsidiary or other Affiliate thereof in a transaction that complies with the ~~Applicable Rate in respect~~ terms of ~~Loans of Lenders that have consented to any such extension~~Section 9.04(e). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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. (f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any compliance certificate delivered under Section 5.01(c), shall prove to have been materially inaccurate, and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Total Leverage Ratio), then the Borrower shall pay to the Administrative Agent, for distribution to the Lenders and the Issuing Banks (or former Lenders and Issuing Banks) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement.

Appears in 3 contracts

Samples: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City ~~time~~time in the case of Borrowings denominated in Dollars and prior to 2:00 p.m., Local Time in the case of Borrowings denominated in an Alternative Currency), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. ~~All~~ Except as otherwise expressly provided herein, all payments ~~or prepayments of any Loan~~ by the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent in ~~the currency in which~~ such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars,~~ Alternative Currency and all other payments under each Loan Document shall be made in ~~dollars~~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 ~~(i) first,~~ towards payment of ~~interest and fees~~ the amounts then due ~~hereunder,~~ hereunder ratably among the parties entitled ~~thereto~~ thereto, in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) ~~If any~~ Except to the extent that this Agreement provides for payments to be disproportionately allocated to or retained by a particular Lender or group of Lenders (including in connection with the payment of principal, interest or fees in different amounts or at different rates and the repayment of principal amounts of Loans at different times as a result of Extension Amendments, Incremental Facility Agreements, purchases of Term Loans pursuant to Purchase Offers under Section 2.23 or non-ratable prepayments of Classes of Loans pursuant to Section 2.10(c)), each Lender agrees that if it shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ amount 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ a Borrower pursuant to and in accordance with the express terms of this Agreement (~~including~~ for the ~~application~~ avoidance of ~~funds arising~~ doubt, as in effect from ~~existence of a Defaulting Lender), (B~~time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any ~~assignee or participant or~~ Person that is an Eligible Assignee (~~C) any disproportionate payment obtained by a Lender of any Class~~ as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented such term is defined from time to ~~any such extension~~time). ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or ~~the~~ Issuing Banks hereunder that the ~~Borrowers~~ applicable Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant~~ hereunder to ~~Section 2.04(c)~~or for the account of the Administrative Agent, ~~2.05(e)~~ any Issuing Bank or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~the Swingline Lender, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid and/or~~ have been discharged or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ application to, any future funding obligations of such Lender ~~under~~ pursuant to Sections 2.04(c), 2.05(d), 2.05(f), 2.06(b), 2.18(c), 2.18(d) and 9.03(c), in each case in such order as shall be determined by the Administrative Agent in its discretion. Notwithstanding anything to the contrary herein, any amounts paid by a Loan Party for the account of a Lender that are applied or held pursuant to this Section 2.18(e) shall be deemed paid by such ~~Section~~Loan Party to such Lender.

Appears in 3 contracts

Samples: Incremental Facility Agreement (Ingevity Corp), Incremental Facility Agreement (Ingevity Corp), Credit Agreement (Ingevity Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements, or~~ Disbursement of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan ~~shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan~~ or LC Disbursement ~~shall be made in dollars,~~ (or of interest thereon) and all other payments under each Loan ~~Document~~ Document, in each case, shall be made in ~~dollars~~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~~ interest, premiums and fees then due hereunder, such funds shall be applied (i) first, towards payment of ~~interest~~ interest, premiums and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of ~~interest~~ interest, premiums and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If Except as otherwise set forth in this Agreement or any other Loan Document, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other Lender and such other Lender would have been entitled to be treated on a pro rata basis with such receiving Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ or participations in LC Disbursements ~~and~~ or Swingline Loans of such other ~~Lenders~~ Lender at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders entitled to such payment ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term~~ Loans ~~and~~ or participations in LC Disbursements ~~and~~ or 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for ~~the~~ any permitted assignment of or sale of a participation in any of its ~~Loans~~ Loans, Commitments or participations in LC Disbursements or Swingline Loans to any assignee or ~~participant~~ participant, including any payment made or deemed made in connection with an Incremental Refinancing Facility or Sections 2.22 or 9.02 or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension, including under Section 2.24. The ~~Borrowers consent~~ Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable ~~law~~Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (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(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), ~~2.18(d)~~ this Section 2.18 or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: Credit Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or ~~reimbursement of LC Disbursements, or~~ of amounts payable under Section 2.15, ~~2.16 or 2.17~~Section 2.16, Section 2.17 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 2:00 p.m., New York City time, or, in the case of payments denominated in an Alternative Currency, 9:00 a.m., New York time), on the date when due, in immediately available funds, without setoff or counterclaim. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrower hereunder shall be made to 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., New York City time, on the date specified herein. 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 to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in same day funds not later than the applicable time specified by the Administrative Agent on the dates specified herein. If, for any reason, the Borrower is prohibited by any Requirement of Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency. 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 ~~such account as may be specified by~~ the Administrative Agent’s Office, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to ~~Sections~~ Section 2.11(i), Section 2.12(d), Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto 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 Unless otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments under each Loan Document of principal or ~~prepayments~~ interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in the currency ~~in which~~ of such Loan ~~is denominated~~and, ~~all reimbursements of~~ except as otherwise set forth in any ~~LC Disbursements shall be made in dollars~~Loan Document, ~~all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and~~ all other payments under each Loan Document shall be made in ~~dollars~~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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If If, other than as provided elsewhere herein, any Lender shall, by exercising any right of setoff or ~~counterclaim or otherwise~~counterclaim, 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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 Loans, Term Loans and participations in LC Disbursements and Swingline~~ Class of 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to (Av) any payment or prepayment made by ~~such~~ or on behalf of the Borrower or any other 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), (Bx) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or participant or ~~(C) any disproportionate payment obtained by a Lender~~ the termination of any ~~Class as~~ Lender’s commitment and non-pro rata repayment of Loans pursuant to Section 2.19(b), (y) transactions in connection with an open market purchase or a ~~result~~ Dutch Auction, or (z) in connection with a transaction pursuant to an Extension Offer, Refinancing Amendment or Incremental Facility Amendment or amendment in connection with Refinanced Term Loans. For the avoidance of doubt, this Section shall not limit the ability of the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Parent or any ~~increase in the Applicable Rate in respect of~~ Restricted Subsidiary to (i) purchase and retire Term Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff~~ an open market purchase or a Dutch Auction or (ii) pay principal, fees, premiums and ~~counterclaim~~ interest with respect to ~~such participation~~ Other Revolving Loans, Other Term Loans, Refinanced Term Loans, Extended Term Loans, Replacement Term Loans, Extended Revolving Loans and Extended Revolving Commitments, Incremental Revolving Loans and Incremental Revolving Commitments or Incremental Term Loans following the effectiveness of any Refinancing Amendment, any Extension Offer or Incremental Facility Amendment, as ~~fully as if such Lender were~~ applicable, on a ~~direct creditor of~~ basis different from the ~~Borrowers in the amount~~ Loans of such ~~participation~~Class that will continue to be held by Lenders that were not Additional Refinancing Lenders, Extending Lenders or Additional Lenders or Incremental Revolving Lenders, as applicable. (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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e) or 2.05(f), 2.06(a~~2.06 (a) or (b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 3 contracts

Samples: Credit Agreement (Micro Focus International PLC), Credit Agreement (Seattle SpinCo, Inc.), Credit Agreement (Micro Focus International PLC)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 relative aggregate ~~amount~~ amounts of principal of and accrued interest on their ~~respective~~ Revolving Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 3 contracts

Samples: Credit Agreement (Hawaiian Telcom Communications, Inc.), Credit Agreement (LifeCare Holdings, Inc.), Credit Agreement (R H Donnelley Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all ~~reimbursements of any LC Disbursements shall be made in dollars, all~~ payments of accrued interest payable on a Loan ~~or LC Disbursement~~ shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal~~, unreimbursed LC Disbursements~~, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans~~ of such Class and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans~~ of such Class 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, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans,~~ of such Class; 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers~~ Borrower 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the ~~Lenders or Issuing Banks, as the case may be~~Lenders, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to to, Section ~~2.04(c~~2.06(a), ~~2.05(e) or 2.05(f~~Section 2.06(b), ~~2.06(a) or (b~~Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 3 contracts

Samples: Credit Agreement, Credit Agreement (Dell Technologies Inc), Credit Agreement (Dell Technologies Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative Agent at the Administrative Agent’s Office, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or other Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 3 contracts

Samples: Credit Agreement (Nasdaq Stock Market Inc), Credit Agreement (Nasdaq Stock Market Inc), Credit Agreement (Nasdaq Stock Market Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 ~~(i)~~ first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and ~~(ii)~~ second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any Class of its ~~Revolving Loans, Term~~ Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans of such Class and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans of such Class 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 Loans, Term~~ Loans of such Class 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 paragraph (c) shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(a) or Section 2.04(b), ~~2.05(e~~Section 2.16(d), Section 2.22(c) or ~~2.05(f~~Section 2.22(d), ~~2.06(a~~Section 2.23(c) or ~~(b), 2.18(d) or~~ Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ Holdings or the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The~~ Holdings and the 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 Holdings or the Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or the ~~Borrowers~~ Borrowers, as applicable, in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from Holdings or 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 Banks hereunder that Holdings or the Borrowers will not make such payment, the Administrative Agent may assume that Holdings or the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if Holdings or the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or~~ Section 2.05(f), ~~2.06(a) or (b~~Section 2.05(g), Section 2.06(a), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 3 contracts

Samples: Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, 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 2:00 p.m., ~~New York City time~~Local Time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan or with respect to a Letter of Credit shall be made in the currency in which such Loan or Letter of Credit (as applicable) is denominated, all payments of accrued interest payable on a Loan shall be made in the currency in which such Loan is denominated, ~~all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars,~~ and all other payments under each Loan Document shall be made in ~~dollars~~Dollars. If, for any reason, the Borrower is prohibited by Requirements of Law from making any required payment hereunder in any currency (other than Dollars), the Borrower shall make such payment in Dollars in the Dollar Equivalent of such payment amount. (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~~under the Facility, such funds shall be applied ~~(i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto~~ in accordance with ~~the amounts of interest~~ Section 7.02(a) (except (A) clauses first and ~~fees then due to such parties,~~ second thereof and (iiB) ~~second~~to Secured Cash Management Obligations, ~~towards payment~~ Secured Bank Product Obligations and Secured Swap Obligations) notwithstanding the absence of ~~principal and unreimbursed LC Disbursements then due hereunder~~an Event of Default, ~~ratably among~~ exercise of remedies or acceleration of the ~~parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties~~Loans. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in such LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in such LC Disbursements ~~and~~ or 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, Term~~ Loans ~~and~~ of such Class or participations in such LC Disbursements ~~and~~ or 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class or participations in LC Disbursements or Swingline Loans as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans ~~or Revolving Commitments~~ of that Class or participations in LC Disbursements or Swingline Loans or any increase in the Applicable Rate in respect of Loans or participations in LC Disbursements or Swingline Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower, as applicable, 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(a) or 2.04(b), ~~2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d~~2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Abl Credit Agreement (Chewy, Inc.), Abl Credit Agreement (Chewy, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ Unless otherwise specified, the Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC ~~Disbursements,~~ Disbursements or of amounts payable under Section 2.15, Section 2.16 or Section 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff or ~~counterclaim~~counterclaim (except as otherwise provided in Section 2.17). 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to ~~Sections~~ Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan or LC Disbursement (or of interest thereon) shall be made in the currency in which such Loan ~~is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan~~ or LC Disbursement ~~shall be made in dollars~~is denominated (or the Dollar Equivalent thereof), and all other payments under each Loan Document shall be made in ~~dollars~~Dollars. If, for any reason, the Borrower is prohibited by any Requirements of Law from making any required payment hereunder in an Approved Foreign Currency, the Borrower shall make such payment in Dollars in an amount equal to the Dollar Equivalent of such Approved Foreign Currency payment amount. (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 ~~(i) first, towards payment of interest and fees then due hereunder, ratably among~~ in the ~~parties entitled thereto~~ manner set forth in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesSection 7.03. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in Swingline Loans or LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in Swingline Loans or LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in Swingline Loans or LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in Swingline Loans or LC Disbursements ~~and Swingline Loans~~ of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in Swingline Loans or LC ~~Disbursements and Swingline Loans,~~ 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 ~~paragraph~~ clause (c) shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for ~~the~~ any permitted assignment of or sale of a participation in any of its Loans or participations in Swingline Loans or LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant~~ participant, including any payment made or deemed made in connection with Sections 2.21, 2.22 or 9.02 or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable ~~law~~Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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 (A) if such amount is denominated in Dollars, 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 and (B) if such amount is denominated in an Approved Foreign Currency or any Alternative Currency, the rate reasonably determined by the Administrative Agent to be its cost of funding such amount. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.06(a), ~~2.05(e) or 2.05(f~~Section 2.06(b), ~~2.06(a) or (b),~~ Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 ~~2:00 p.m.~~12:00 noon, New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ condition or deduction for any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, under this Agreement and ~~all~~ each other ~~payments under each~~ Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and ~~Swingline Loans and~~ accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ Eligible Assignee, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase~~ Subsidiary or other Affiliate thereof in a transaction that does not comply with the ~~Applicable Rate in respect~~ terms of ~~Loans~~ Section 9.04(f) (as to which the provisions of ~~Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In With respect to any payment that the Administrative Agent makes for the account of any of the Lenders or any of the Issuing Banks hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such ~~event, if~~ payment referred to as the ~~Borrowers have~~ “Rescindable Amount”): (A) the Borrower has not in fact made such payment, ; (B) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (C) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, severally agrees to repay to the Administrative Agent forthwith on demand the ~~amount~~ Rescindable 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(d) or (e), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(a) or (b), ~~2.18(d~~2.16(e), 2.17(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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. (f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any Compliance Certificate delivered under Section 5.01(c), shall prove to have been materially inaccurate, and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Total Net Leverage Ratio), then, if such inaccuracy is discovered prior to the termination of the Commitments and the repayment in full of the principal of all Loans and the reduction of the LC Exposure to zero, the Borrower shall pay to the Administrative Agent, for distribution to the Lenders and the Issuing Banks (or former Lenders and Issuing Banks) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement. (g) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Xxxxxx as provided in the provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (h) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 9.03 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 9.03 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 fund its participation or to make its payment under Section 9.03.

Appears in 2 contracts

Samples: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.13, Section 2.14 or Section 2.15~~, 2.16 or 2.17~~, or otherwise) at or 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 2:00 p.m., New York City time (or 2:00 p.m., London time, in the case of Loans denominated in Euro)), on the date when due, in ~~immediately available funds~~Same Day Funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except ~~payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except~~ that payments pursuant to ~~Sections 2.15~~Section 2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as expressly provided herein, if any payment (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all ~~other~~ payments under each Loan Document shall be made in ~~dollars~~Dollars if such Loan is a Dollar Term Loan or in Euros if such Loan is a Euro Term Loan, except as otherwise expressly provided herein. (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~~ applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, ~~and~~ and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts ~~of principal and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans,~~ Term ~~Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Term Loans~~, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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~~Lender and as contemplated by Section 2.09(a)(ii) and 9.04(h)), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans or participations in LC Disbursements or Swingline~~ Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving Commitments of that Class or~~ any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 Lenders ~~or the Issuing Banks~~ hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, as the case may be,~~ severally ~~agrees~~ agree 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~~ equal to the ~~Administrative Agent in accordance with banking industry rules on interbank compensation~~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(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Constellium Holdco B.V.), Credit Agreement (Constellium Holdco B.V.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City ~~time~~time or, in the case of an amount payable in a Local Currency, 1:00 p.m. local time at the place of payment), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (or, in the case of payments in a Local Currency, such other location as provided below), except payments to be made directly to ~~any~~ an Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and ~~9.03~~ 10.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~Dollars, except as expressly provided herein with respect to Local Currency Loans and Local Letters of Credit. All payments to be made by any Borrower in a Local Currency pursuant to Section 2.05(k) or in respect of any Local Currency Loan shall be made in such Local Currency in such funds as may then be customary for the settlement of international transactions in such Local 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 relevant Borrower by not less than four Business Days’ Notice. (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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ any Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C)~~ participant, other than to any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 from such Borrower for the account of the Lenders or ~~the~~ an Issuing ~~Banks~~ Bank hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or such Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ relevant Borrower has not in fact made such payment, then each of the Lenders or such Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or ~~9.03(c~~10.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Mosaic Co), Credit Agreement (Mosaic Co)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower and each LC Subsidiary 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 ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) prior to ~~the time expressly required hereunder or under such other Loan Document for such payment (or~~12:00 noon, ~~if no such time is expressly required, prior to 2:00 p.m., New York City time)~~Local Time, on the date when due, in immediately available funds, without ~~setoff~~ 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 to such account as ~~may be specified by~~ the Administrative ~~Agent~~Agent shall from time to time specify at its respective Applicable Offices; provided, ~~except~~ however, that payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and ~~except that~~ payments pursuant to Sections 2.14, 2.15, 2.16, ~~2.17~~ 2.19 and 9.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans) under any Loan Document~~ 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest or fees in respect of any ~~Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC Disbursement shall be made in ~~dollars, and~~ the currency of such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in ~~dollars~~Dollars at the Exchange Rate in effect at such time of payment, if applicable. 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 If, at any ~~time~~ 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of ~~setoff~~ set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on its Loans of any ~~of its Revolving Loans, Term Loans~~ Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in ~~the Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements and Swingline ~~Loans~~Loans and accrued interest thereon; provided, ~~provided~~ however, 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 paragraph shall not be construed to apply to ~~(A)~~ any payment made ~~by such Borrower~~ pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C)~~ participant, other than to GrafTech, a Borrower, any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class other Subsidiary or any ~~increase in~~ Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans~~ this paragraph shall apply). Each of ~~Lenders that have consented to any such extension. The Borrowers consent~~ GrafTech, each Borrower and each LC Subsidiary 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 Borrowers~~ GrafTech, such Borrower or such LC Subsidiary rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ GrafTech, such Borrower or such LC Subsidiary in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from ~~the~~ a Borrower or an LC Subsidiary prior to the date on which any payment is due to the Administrative Agent for the account of all or certain of the Lenders or the Issuing ~~Banks~~ Bank hereunder that ~~the Borrowers~~ such Borrower or such LC Subsidiary will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower or such LC Subsidiary has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the applicable Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Borrower or such LC Subsidiary has not in fact made such payment, then each of the applicable Lenders or the Issuing ~~Banks~~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 reasonably determined by the Administrative Agent in accordance with banking industry ~~rules~~ practices on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant~~ to ~~Section 2.04(c), 2.05(e)~~ the Administrative Agent or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~another Lender under this Agreement, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (notwithstanding any contrary provision hereof), ~~(i)~~ apply any amounts thereafter received by ~~the Administrative Agent~~ it for the account of such Lender to satisfy such Lender’s obligations under ~~such Section~~ this Agreement until all such unsatisfied obligations are fully ~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Graftech International LTD), Credit Agreement (Graftech International LTD)

Appears in 2 contracts

Samples: Credit Agreement (Marketing Services Inc), Credit Agreement (American Media Operations Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, or otherwise) at or 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 0000 Xxxxxx Xxxxxx, 10th Floor, Houston, Texas 77002, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, 2018 Extended Revolving Loans, Tranche B Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, 2018 Extended Revolving Loans, Tranche B Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, 2018 Extended Revolving Loans, Tranche B 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 Loans, 2018 Extended Revolving Loans, Tranche B 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, 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. (e) If any Tranche B Lender, Revolving Lender or 2018 Extended Revolving Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e) or 2.05(f),~~ 2.06(a~~) or (b~~), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ Sections until all such unsatisfied obligations are fully ~~paid~~ paid. If any Revolving Lender or 2018 Extended Revolving 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(a), 2.18(d) or 9.03(c), 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 Revolving Lender or 2018 Extended Revolving Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Revolving Lender or 2018 Extended Revolving 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 ~~to be applied~~ application to, any future funding obligations of such Revolving Lender or 2018 Extended Revolving Lender under such Sections; in the case of each of (i) and (ii) above, in any ~~such Section~~order as determined by the Administrative Agent in its discretion.

Appears in 2 contracts

Samples: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 4 World Financial Center, 000 Xxxxx Xxxxxx New York, NY 10080, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Tranche A Term Loans, Tranche B Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Tranche A Term Loans, Tranche B Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Tranche A Term Loans, Tranche B 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 Loans, Tranche A Term Loans, Tranche B 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a~~) or (b~~), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Symbion Inc/Tn), Credit Agreement (NeoSpine Surgery, LLC)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, closing payments or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, ~~2.16~~ or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Greenhill & Co Inc), Credit Agreement (Greenhill & Co Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in ~~immediately available funds~~Same Day Funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any ~~Loan shall be made in the currency in which such Loan is denominated~~Loan, all reimbursements of any LC ~~Disbursements shall be made in dollars~~Disbursements, all payments of accrued interest payable on a Loan or LC Disbursement ~~shall be made in dollars,~~ and all other payments under each Loan Document shall be made in ~~dollars~~Dollars except as otherwise expressly provided herein. (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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If Except as otherwise permitted hereunder, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any ~~principal of or interest on any~~ of its ~~Revolving Loans, Term~~ Loans of any Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~relevant Lender in respect of such other Lenders’ Loans of such Class or participation in LC Disbursements and Swingline Loans, as applicable, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements and Swingline Loans ~~of other~~ from the relevant 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, Term~~ Loans ~~and~~ of such Class or 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower or any Loan Party made pursuant to and in accordance with the express terms of this Agreement and the other Loan Documents (including the application of funds arising from the existence of a Defaulting ~~Lender~~Lender and as contemplated by Sections 2.11(a)(ii) and 9.04(g)), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate (or other pricing term, including any fee, discount or premium) in respect of Loans or Commitments of Lenders that have consented to any such ~~extension~~extension to the extent such transaction is permitted hereunder. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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~~ equal to the ~~Administrative Agent in accordance with banking industry rules on interbank compensation~~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(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Blue Buffalo Pet Products, Inc.), Credit Agreement (Blue Buffalo Pet Products, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except that payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided ~~herein and except that~~ herein, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Camping World Holdings, Inc.), Credit Agreement (Camping World Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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 2.15, 2.16 or 2.17, or otherwise) prior to ~~the time expressly required hereunder or under such other Loan Document for such payment (or~~12:00 noon, ~~if no such time is expressly required, prior to 2:00 p.m., New York City time)~~Local Time, on the date when due, in immediately available funds, without ~~setoff~~ set-off or counterclaim. 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 to the applicable account specified in Schedule 2.18 or, in any such case, to such other account as ~~may be specified by~~ the ~~Administrative Agent, except~~ Applicable Agent shall from time to time specify in a notice delivered to the Company; provided that payments to be made directly to ~~any~~ the Issuing Bank ~~or Swingline Lender shall be made~~ as expressly provided herein and ~~except that~~ payments pursuant to Sections 2.15, 2.16, 2.17 and ~~9.03~~ 11.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified ~~therein~~therein (it being agreed that the Borrowers will be deemed to have satisfied their obligations with respect to payments referred to in this proviso if they shall make such payments to the persons entitled thereto in accordance with instructions provided by the Administrative Agent; the Administrative Agent agrees to provide such instructions upon request, and no Borrower will be deemed to have failed to make such a payment if it shall transfer such payment to an improper account or address as a result of the failure of the Administrative Agent to provide proper instructions). The ~~Administrative~~ Applicable Agent shall distribute any such payments received by it for the account of any Lender or other Person ~~to the appropriate recipient~~ promptly following receipt ~~thereof~~thereof at the appropriate lending office or other address specified by such Lender or other Person. If any payment ~~(other than payments on the Eurocurrency Loans) under any Loan Document~~ 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except or otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document shall be made in ~~dollars~~US Dollars. Any payment required to be made by an 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 regulations or operating procedures of the clearing or settlement system used by such 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of ~~setoff~~ 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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 Loans, Term~~ Loans and participations in LC Disbursements and ~~Swingline Loans,~~ accrued interest thereon; 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 paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ any Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Company or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of ~~setoff~~ set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower in the amount of such participation. (dc) Unless the ~~Administrative~~ Applicable 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 all or certain of the Lenders or the Issuing ~~Banks~~ Bank hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the ~~Administrative~~ Applicable Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the applicable Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the applicable Lenders or the Issuing ~~Banks~~Bank, as the case may be, severally agrees to repay to the ~~Administrative~~ Applicable 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~~ Applicable Agent, at ~~the greater of the Federal Funds Effective Rate and~~ a rate determined by the ~~Administrative~~ Applicable Agent in accordance with banking industry ~~rules~~ practices on interbank compensation. (ed) If any Lender shall fail to make any payment required to be made by it to any Agent pursuant to ~~Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~this Agreement, then the ~~Administrative Agent~~ Agents may, in ~~its~~ their discretion ~~and in the order determined by the Administrative Agent~~ (notwithstanding any contrary provision hereof), ~~(i)~~ apply any amounts thereafter received by ~~the Administrative Agent~~ them for the account of such Lender to satisfy such Lender’s 's obligations ~~under such Section~~ to the Agents until all such unsatisfied obligations are fully ~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Waters Corp /De/), Five Year Credit Agreement (Waters Corp /De/)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document 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 (i) first, towards payment ~~of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts~~ of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee~~ Eligible Assignee, to the Borrower or ~~participant~~ any Subsidiary or other Affiliate thereof in a transaction that complies with the terms of Section 9.04(e) or (~~C) any disproportionate payment obtained by a Lender of any Class~~ f), as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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 2 contracts

Samples: Credit Agreement (Allegion PLC), Credit Agreement (Allegion PLC)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Company 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 2.15, 2.16 or 2.17, 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 ~~2:00 p.m.~~12:00 noon, ~~New York City time),~~ Local Time) on the date when due, in immediately available funds, without setoff or counterclaim. 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 to the applicable account specified in Schedule 2.18 or, in any such case, to such other account as ~~may be specified by~~ the ~~Administrative Agent, except~~ Applicable Agent shall from time to time specify in a notice delivered to the Company; provided that payments to be made directly to ~~any~~ the Issuing Bank ~~or Swingline Lender shall be made~~ as expressly provided herein and ~~except that~~ payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified ~~therein~~therein (it being agreed that the Company will be deemed to have satisfied their obligations with respect to payments referred to in this proviso if they shall make such payments to the persons entitled thereto in accordance with instructions provided by the Administrative Agent; the Administrative Agent agrees to provide such instructions upon request, and the Company will not be deemed to have failed to make such a payment if it shall transfer such payment to an improper account or address as a result of the failure of the Administrative Agent to provide proper instructions). The ~~Administrative~~ Applicable Agent shall distribute any such payments received by it for the account of any Lender or other Person ~~to the appropriate recipient~~ promptly following receipt ~~thereof~~thereof at the appropriate lending office or other address specified by such Lender or other Person. If any payment ~~(other than payments on the Eurocurrency Loans) under any Loan Document~~ 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except or otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document shall be made in ~~dollars~~US Dollars. Any payment required to be made by an 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 regulations or operating procedures of the clearing or settlement system used by such 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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 Loans, Term~~ Loans and participations in LC Disbursements and ~~Swingline Loans,~~ accrued interest thereon; 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 paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such Borrower~~ the Company pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Company or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ Company 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 ~~Borrowers~~ Company rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Company in the amount of such participation. (dc) Unless the ~~Administrative~~ Applicable 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 all or certain of the Lenders or the Issuing ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Company will not make such payment, the ~~Administrative~~ Applicable Agent may assume that the ~~Borrowers have~~ Company has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the applicable Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Company has not in fact made such payment, then each of the applicable Lenders or the Issuing ~~Banks~~Bank, as the case may be, severally agrees to repay to the ~~Administrative~~ Applicable 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~~ Applicable Agent, at ~~the greater of the Federal Funds Effective Rate and~~ a rate determined by the ~~Administrative~~ Applicable Agent in accordance with banking industry ~~rules~~ practices on interbank compensation. (ed) If any Lender shall fail to make any payment required to be made by it to any Agent pursuant to ~~Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~this Agreement, then the ~~Administrative Agent~~ Agents may, in ~~its~~ their discretion ~~and in the order determined by the Administrative Agent~~ (notwithstanding any contrary provision hereof), ~~(i)~~ apply any amounts thereafter received by ~~the Administrative Agent~~ them for the account of such Lender to satisfy such Lender’s obligations ~~under such Section~~ to the Agents until all such unsatisfied obligations are fully ~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Waters Corp /De/), Credit Agreement (Waters Corp /De/)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under ~~Section~~ Sections 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made as set forth in ~~dollars~~Section 2.05(f), all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c),~~ 2.05(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Pathfinder Acquisition Corp), Credit Agreement (EverCommerce Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, ~~2.16 or 2.17~~Section 2.16, Section 2.17 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 ~~2:00~~ 12:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative Agent’s Office, except payments to be made directly to ~~any~~ an Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to ~~Sections~~ Section 2.11, Section 2.11(i), Section 2.12(d), Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto 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 Unless otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments under each Loan Document of principal or ~~prepayments~~ interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in the currency ~~in which~~ of such Loan ~~is denominated~~and, ~~all reimbursements of~~ except as otherwise set forth in any ~~LC Disbursements shall be made in dollars~~Loan Document, ~~all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and~~ all other payments under each Loan Document shall be made in ~~dollars~~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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If If, other than as provided elsewhere herein, any Lender shall, by exercising any right of setoff or ~~counterclaim or otherwise~~counterclaim, 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and~~ or 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~~Loans of the applicable Class, Term Loans of the applicable Class and participations in LC Disbursements ~~and~~ or Swingline ~~Loans~~Loans of the applicable Class, 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 paragraph shall not be construed to apply to (Av) any payment or prepayment made by ~~such~~ or on behalf of the Borrower or any other 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), (Bw) the application of Cash Collateral provided in Section 2.23 from time to time (including the application of funds arising from the existence of a Defaulting Lender), (x) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or ~~(C) any disproportionate payment obtained by a Lender~~ the termination of any ~~Class as~~ Lender’s commitment and non-pro rata repayment of Liens pursuant to Section 2.19(b), (y) transactions in connection with an open market purchase or a ~~result~~ Dutch Auction, or (z) in connection with a transaction pursuant to an Extension Offer, Refinancing Amendment or Incremental Credit Facility Amendment or amendment in connection with Refinanced Term Loans. For the avoidance of doubt, this Section shall not limit the ability of the ~~extension by Lenders of~~ Holding Companies the ~~maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in the Applicable Rate in respect of~~ Restricted Subsidiary to purchase and retire Term Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff~~ an open market purchase or a Dutch Auction or (ii) pay principal, fees, premiums and ~~counterclaim~~ interest with respect to ~~such participation~~ Other Revolving Loans, Other Term Loans, Refinanced Term Loans, Incremental Revolving Loans or Incremental Term Loans following the effectiveness of any Refinancing Amendment, any Extension Offer or Incremental Credit Facility Amendment, as ~~fully as if such Lender were~~ applicable, on a ~~direct creditor of~~ basis different from the ~~Borrowers in the amount~~ Loans of such ~~participation~~Class that will continue to be held by Lenders that were not Extending Lenders or Lenders pursuant to such Incremental Credit Facility Amendment, as applicable. (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 ~~Banks~~ Banks, as applicable, hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have made~~ Borrower will make such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ei) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~Section 2.05(d) or ~~2.05(f~~(e), Section 2.06(a) or (b), Section 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.or

Appears in 2 contracts

Samples: First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by such 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (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(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower or the Blocked Borrower (as applicable) shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, Section 2.16 or Section 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except ~~payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except~~ that payments pursuant to ~~Sections~~ Section 2.15, Section 2.16, Section 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any ~~Loan~~ Loan(or of interest thereon) shall be made in the currency in which such Loan is denominated, ~~all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars,~~ and all other payments under each Loan Document shall be made in ~~dollars~~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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans~~ of such Class and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans~~ of such Class of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term~~ Loans ~~and participations in LC Disbursements and Swingline Loans,~~ of such Class; 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for ~~the~~ any permitted assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or ~~participant~~ participant, including any payment made or deemed made in connection with Section 2.21, 2.22 or 9.02 or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ Borrower and the Blocked Borrower each 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 ~~Borrowers~~ Borrower or the Blocked Borrower (as applicable) rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower or the Blocked Borrower (as applicable) in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from ~~the Borrower~~ Holdings prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the Issuing Banks~~ hereunder that the ~~Borrowers~~ Borrower or the Blocked Borrower (as applicable) will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower or the Blocked Borrower (as applicable) has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower or the Blocked Borrower (as applicable) has not in fact made such payment, then each of the ~~Lenders or Issuing Banks, as the case may be~~Lenders, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.06(a), ~~2.05(e) or 2.05(f~~Section 2.06(b), ~~2.06(a) or (b),~~ Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: First Lien Term Loan Credit Agreement (Tronox LTD), First Lien Term Loan Credit Agreement (Tronox LTD)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~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 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) ~~first,~~ first towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) ~~second,~~ second towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term B Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term B Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Term B 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 Loans, Term B 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 ~~Banks~~ Bank hereunder that ~~the Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(f), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d) or ~~9.03(c~~11.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~dollars except as otherwise expressly provided herein. (b) If Subject to Section 4.02 of the Collateral Agreement, 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Incremental Term Loans, Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Incremental Term Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~applicable Lender as required under the Loan Documents (including, without limitation, pursuant to Section 4.02 of the Collateral Agreement), then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Incremental Term Loans and Term Loans and participations in LC Disbursements and Swingline Loans of other applicable 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, Incremental Term Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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 (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionparticipant. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (TA Holdings 1, Inc.), Credit Agreement (TA Holdings 1, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ Unless otherwise specified, the Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC ~~Disbursements,~~ Disbursements or of amounts payable under Section 2.15, Section 2.16 or Section 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff or ~~counterclaim~~counterclaim (except as otherwise provided in Section 2.17). 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to ~~Sections~~ Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on ~~the Eurocurrency~~ Term Benchmark Loans) 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. If any payment on a ~~Eurocurrency~~ Term Benchmark Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan or LC Disbursement (or of interest thereon) shall be made in the currency in which such Loan ~~is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan~~ or LC Disbursement ~~shall be made in dollars~~is denominated (or the Dollar Equivalent thereof), and all other payments under each Loan Document shall be made in ~~dollars~~Dollars. If, for any reason, the Borrower is prohibited by any Requirements of Law from making any required payment hereunder in an Approved Foreign Currency, the Borrower shall make such payment in Dollars in an amount equal to the Dollar Equivalent of such Approved Foreign Currency payment amount. (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 ~~(i) first, towards payment of interest and fees then due hereunder, ratably among~~ in the ~~parties entitled thereto~~ manner set forth in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesSection 7.03. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in Swingline Loans or LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in Swingline Loans or LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in Swingline Loans or LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in Swingline Loans or LC Disbursements ~~and Swingline Loans~~ of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in Swingline Loans or LC ~~Disbursements and Swingline Loans,~~ 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 ~~paragraph~~ clause (c) shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for ~~the~~ any permitted assignment of or sale of a participation in any of its Loans or participations in Swingline Loans or LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant~~ participant, including any payment made or deemed made in connection with Sections 2.21, 2.22 or 9.02 or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable ~~law~~Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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 (A) if such amount is denominated in Dollars, 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 and (B) if such amount is denominated in an Approved Foreign Currency or any Alternative Currency, the rate reasonably determined by the Administrative Agent to be its cost of funding such amount. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.06(a), ~~2.05(e) or 2.05(f~~Section 2.06(b), ~~2.06(a) or (b),~~ Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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~~ interest, fees and ~~fees~~ other amounts then due hereunder, such funds shall be applied (i) first, towards payment of ~~interest~~ interest, fees and ~~fees~~ other amounts (other than principal and unreimbursed LC Disbursements) then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of the Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or ~~reimbursement of LC Disbursements, or~~ of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative Agent at the Administrative Agent’s Office, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. ~~All~~ Except as otherwise expressly provided herein and except, with respect to principal of and interest on Loans denominated in Swedish Kronor, all payments ~~or prepayments of any Loan~~ by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Swedish Kronor and in Same Day Funds. If, for any reason, the Borrower is prohibited by any Requirement of Law from making any required payment hereunder in Swedish Kronor, the Borrower shall make such payment in Dollars in the ~~currency~~ Dollar Equivalent of the Swedish Kroner payment amount. The Administrative Agent will promptly distribute to each Lender its pro rata (or other applicable share as provided herein) of such payment in ~~which~~ like funds as received by wire transfer to such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in dollarsLender’s lending office. (b) If Subject to Section 2.16(e), 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 ~~(i) first,~~ towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If Subject to Section 2.16(e), if any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Loans~~, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or other Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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~~Overnight Rate. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.03(b), ~~2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d~~2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Nasdaq, Inc.), Credit Agreement (Nasdaq, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. If, for any reason, the Borrower is prohibited by any Law from making required payments hereunder in Australian Dollars, the Borrower shall make such payment in dollars in the Dollar Equivalent of the Australian Dollar payment amount. 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of the Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: First Lien Credit Agreement (NEP Group, Inc.), First Lien Credit Agreement (NEP Group, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section ~~2.15, 2.16~~ 2.15 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ setoff, recoupment, defense 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15~~, 2.16~~, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Term SOFR Loans) 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. If any payment on a ~~Eurocurrency~~ Term SOFR Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower, as applicable, in the amount of such participation. For purposes of clause (c) of the definition of “Excluded Taxes,” a Lender that acquires a participation pursuant to this Section 2.18(c) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) or Loan(s) (as applicable) to which such participation relates. (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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.05(e), ~~2.05(e) or~~ Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or ~~9.03(c~~Section 9.03(d), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Xxxxxx as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Vacasa, Inc.), Revolving Credit Agreement (Vacasa, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.11, ~~2.16~~ 2.12 or ~~2.17~~2.13, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative ~~Agent, except payments to be made directly to any Issuing Bank or Swingline Lender~~ Agent shall be made as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.11, ~~2.16~~2.12, ~~2.17~~ 2.13 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~dollars except as otherwise expressly provided herein. (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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations ~~in LC Disbursements and Swingline Loans~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Loans~~, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender),~~ or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionparticipant. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (PDL Biopharma, Inc.), Credit Agreement (PDL Biopharma, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 the following provisions of this Section 2.18, each Borrower shall make each payment required to be made by it ~~under any Loan Document~~ hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section ~~2.15, 2.16~~ 2.15 or 2.17, or otherwise) in U.S. Dollars 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 2:00~~ 1:00 p.m., ~~New York City time)~~Local Time, on the date when due, in immediately available funds, without any setoff 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 in U.S. Dollars shall be made to ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its designated office, except payments to be made directly to ~~any~~ an Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. All payments to be made by such Borrower in an Alternative Currency shall be made in such Alternative Currency in such funds as may then be customary for the settlement of international 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 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. 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 receipt thereof. If any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments under any Loan Document of principal or ~~prepayments~~ interest in respect of any Loan denominated in an Alternative Currency or of any breakage indemnity under Section 2.16 in respect of any such Loan shall be made in the currency in which such Loan is denominated~~, all reimbursements of any LC Disbursements shall~~ . All other payments required to be made ~~in dollars, all payments of accrued interest payable on a~~ by any Loan ~~or LC Disbursement shall be made in dollars, and all other payments~~ Party under ~~each~~ any Loan Document shall be made in ~~dollars~~U.S. Dollars except that any amounts payable under Section 2.15, 2.16 or 9.03 (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. (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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) ~~If any~~ Except to the extent that this Agreement provides for payments to be disproportionately allocated to or retained by a particular Lender or group of Lenders (including in connection with the payment of interest or fees at different rates and the repayment of principal amounts of Term Loans at different times as a result of Refinancing Agreements pursuant to Section 2.22), each Lender agrees that if it shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ a 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 the application of funds arising from the existence of a Defaulting Lender), ~~(B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any ~~assignee or participant or~~ Person that is an Eligible Assignee (~~C) any disproportionate payment obtained by a Lender of any Class~~ as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented such term is defined from time to ~~any such extension~~time). ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Borrower in the amount of such participation. Notwithstanding the foregoing, to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Subsidiary Loan Party shall be applied to any Excluded Swap Obligations of such Subsidiary Loan Party. (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 Banks hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant~~ hereunder to ~~Section 2.04(c)~~or for the account of the Administrative Agent, ~~2.05(e)~~ any Issuing Bank or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~the Swingline Lender, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid and/or~~ have been discharged or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ application to, any future funding obligations of such Lender ~~under any~~ pursuant to Sections 2.04(c), 2.05(d), 2.05(f), 2.06(a), 2.17(e), 2.18(d) and 9.03(c), in each case in such ~~Section~~order as shall be determined by the Administrative Agent in its discretion.

Appears in 2 contracts

Samples: Credit Agreement (Minerals Technologies Inc), Credit Agreement (Minerals Technologies Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it hereunder or under any other Senior Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such other Senior Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, except payments to be made directly to ~~any~~ an Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Senior 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 ~~(other than payments on the Eurocurrency Loans)~~ under any Senior 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Senior Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ relative amounts of principal of and accrued interest on their ~~respective Revolving Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or an Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or such Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 0000 Xxxxxx Xxxxxx, 10th Floor, Houston, Texas 77002, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Non-Extended Term Loans, Extended Term Loans or New Tranche B Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Non-Extended Term Loans, Extended Term Loans or New Tranche B Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Non-Extended Term Loans, Extended Term Loans or New Tranche B 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 Loans, Non-Extended Term Loans, Extended Term Loans or New Tranche B 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a~~) or (b~~), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (Shoreline Real Estate Partnership, LLP)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant~~ participant, other than to the Borrower or any Subsidiary or Affiliate thereof (C) as to which the provisions of this paragraph shall apply). For purposes of determining the respective amounts of any purchases required by this paragraph in respect of any disproportionate payment ~~obtained~~ received by ~~a Lender~~ any Lender, the amount of ~~any Class as a result~~ each Tranche B Euro Loan shall be the US Dollar Equivalent of the ~~extension~~ principal amount thereof at the time the payment giving rise to such purchases is received by ~~Lenders of~~ the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable Lender. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Dex Media Inc), Credit Agreement (Dex Media East LLC)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Camping World Holdings, Inc.), Credit Agreement (Rural/Metro Corp /De/)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. If, for any reason, any Borrower is prohibited by Requirements of Law from making any required payment hereunder in Permitted Other Currency, such Borrower shall make such payment in Euro in the Euro Equivalent of the alternative currency payment amount. 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document shall be made in ~~dollars~~Euro. (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 (i) first, towards payment ~~of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts~~ of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and ~~Swingline Loans and~~ accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ a Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee~~ Eligible Assignee, to any Borrower or ~~participant~~ any Subsidiary or other Affiliate thereof in a transaction that complies with the terms of Section 9.04(e) or (~~C) any disproportionate payment obtained by a Lender of any Class~~ f), as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable. ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 Banks hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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 2 contracts

Samples: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Tranche B Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Tranche B Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Tranche B 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 Loans, Tranche B 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~Bank, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a~~) or (b~~), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (AGA Medical Holdings, Inc.), Credit Agreement (AGA Medical Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Borrowers 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~~Reimbursement Obligations, or of amounts payable under Section ~~2.15~~2.11, ~~2.16~~ 2.12 or ~~2.17~~2.14, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ setoff, deduction 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 ~~such account as may be specified by~~ the ~~Administrative Agent~~Agent at its offices at PNC Bank, National Association, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, except payments to be made directly to ~~any~~ the Issuing Bank or the Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to ~~Sections 2.15~~Section 2.11, ~~2.16~~2.12, ~~2.17~~ 2.14 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~Dollars. (b) If Subject to Sections 2.09(c) and 9.01, 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~~Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 11.08) or ~~otherwise~~otherwise (including by exercise of its rights under the Security Documents), 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, ~~Term Loans~~ and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, ~~Term Loans~~ and participations in LC Disbursements and Swingline Loans; provided, ~~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~~ interest, and (ii) the provisions of this ~~paragraph~~ Section 2.13(c) shall not be construed to apply to ~~(A)~~ any payment made by ~~such Borrower~~ the Borrowers pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans~~ Revolving Loans, or participations in LC Disbursements or Swingline Loans to any ~~assignee~~ Eligible Assignee or ~~participant or (C)~~ participant, other than to any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class Company or any ~~increase in~~ Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this Section 2.13(c) shall apply). ~~The Borrowers consent~~ Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable ~~law~~Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the Borrowers~~ each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Loan Party in the amount of such participation. If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.13(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.13(c) to share in the benefits of the recovery of such secured claim. (d) Unless the ~~Administrative~~ Agent shall have received written notice from the Administrative Borrower prior to the date on which any payment is due to the ~~Administrative~~ Agent for the account of the Lenders or the Issuing ~~Banks~~ Bank hereunder that the Borrowers will not make such payment, the ~~Administrative~~ Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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 or practices on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(c), ~~2.05(e~~2.13(d), 2.16(d), 2.17(d), 2.17(e) or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c~~11.03(e), then the ~~Administrative~~ Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen Co)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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~~Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ setoff, deduction 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 600 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in dollars, except as expressly specified otherwise. (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~~Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or ~~otherwise~~otherwise (including by exercise of its rights under Section 9.1 of the Security Agreement), 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ either Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to U.S. Borrower or any ~~increase in~~ of its Subsidiaries or Affiliates (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ Each Loan Party 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 Borrowers~~ such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Loan Party in the amount of such participation. If under applicable bankruptcy, insolvency or any similar law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(c) to share in the benefits of the recovery of such secured claim. (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 Banks~~ hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(c), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d), 2.18(e) or ~~9.03(c~~11.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Ply Gem Holdings Inc), Credit Agreement (Ply Gem Holdings Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, shall be made free and clear of and without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Term SOFR Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties[Reserved]. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate principal amount of its ~~Revolving Loans,~~ Term ~~Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Term Loans~~, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans or participations in LC Disbursements or Swingline~~ Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans ~~or Revolving Commitments~~ of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower’s rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. With respect to any payment that the Administrative Agent makes for the account of the Lenders hereunder as to which (1) the Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the 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, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender, in immediately available 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 Effective 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 the Borrower with respect to any amount owing under this clause (d) shall be conclusive, absent manifest error. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(e) or Section 2.04(f), ~~2.05(e~~Section 2.05(a) or ~~2.05(f~~Section 2.05(b), ~~2.06(a~~Section 2.17(d) or ~~(b), 2.18(d) or~~ Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

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

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ setoff, recoupment, defense 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower, as applicable, 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.05(e), ~~2.05(e) or~~ Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or ~~9.03(c~~Section 9.03(d), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

Appears in 2 contracts

Samples: Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00 p.m.~~12:00 noon, ~~New York City~~ Pittsburgh time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~Dollars other than, to the extent specified herein (including in Section 2.25), with respect to Optional Currency Swingline Loans or Letters of Credit denominated in an Optional 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 ~~(i) first,~~ towards payment of ~~interest and fees~~ the amounts then due ~~hereunder,~~ hereunder ratably among the parties entitled ~~thereto~~ thereto, in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ amount 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement (~~including~~ for the ~~application~~ avoidance of ~~funds arising~~ doubt, as in effect from ~~existence of a Defaulting Lender), (B~~time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any ~~assignee or participant or~~ Person that is an Eligible Assignee (~~C) any disproportionate payment obtained by a Lender of any Class~~ as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented such term is defined from time to ~~any such extension~~time). The ~~Borrowers consent~~ Borrower 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant~~ hereunder to ~~Section 2.04(c)~~or for the account of the Administrative Agent, ~~2.05(e)~~ any Issuing Bank or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~the Swingline Lender, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid and/or~~ have been discharged or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ application to, any future funding obligations of such Lender pursuant to Sections 2.04(d), 2.05(d), 2.05(f), 2.06(b), 2.18(d) and 9.03(c), in each case in such order as shall be determined by the Administrative Agent in its discretion. (f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any Compliance Certificate delivered under Section 5.01(d), shall prove to have been materially inaccurate, and such ~~Section~~inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Net Leverage Ratio), then, if such inaccuracy is discovered prior to the termination of the Commitments and the repayment in full of the principal of all Loans and the reduction of the LC Exposure to zero, the Borrower shall pay to the Administrative Agent, for distribution to the Lenders (or former Lenders) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement.

Appears in 2 contracts

Samples: Credit Agreement (Bentley Systems Inc), Credit Agreement (Bentley Systems Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ setoff, recoupment, defense 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower, as applicable, in the amount of such participation. For purposes of clause (c) of the definition of “Excluded Taxes,” a Lender that acquires a participation pursuant to this Section 2.18(c) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) or Loan(s) (as applicable) to which such participation relates. (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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.05(e), ~~2.05(e) or~~ Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or ~~9.03(c~~Section 9.03(d), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

Appears in 2 contracts

Samples: Credit Agreement (Vacasa, Inc.), Revolving Credit Agreement (Vacasa, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Borrowers 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document 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 (i) first, towards payment ~~of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts~~ of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such Borrower~~ the Borrowers pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee~~ Eligible Assignee, to the Borrowers or ~~participant~~ any Subsidiary or other Affiliate thereof in a transaction that complies with the terms of Section 9.04(e) or (~~C) any disproportionate payment obtained by a Lender of any Class~~ f), as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers ~~have~~ has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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 2 contracts

Samples: Credit Agreement (Allegion PLC), Credit Agreement (Allegion PLC)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under ~~Section~~ Sections 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in~~ dollars, all payments of accrued interest payable on a Loan ~~or LC Disbursement~~ shall be made in dollars, and all other payments under each Loan Document 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 ~~(i) first,~~ towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans,~~ Term ~~Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Term Loans~~, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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 (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving Commitments of that Class or~~ any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e) or 2.05(f),~~ 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Franchise Group, Inc.), First Lien Credit Agreement (Franchise Group, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in ~~dollars~~the currency of such LC Disbursement, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in ~~dollars~~the currency of such Loan or LC Disbursement, as applicable, and all other payments under each Loan Document shall be made in ~~dollars~~dollars except as otherwise expressly provided herein or therein. (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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this ~~Agreement (including the application of funds arising from existence of a Defaulting Lender)~~Agreement, (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~2.05(e), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Skype S.a r.l.), Credit Agreement (Skype S.a r.l.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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 2.15, 2.16 or 2.17, 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~~ 2:00 p.m., ~~New York City time)~~Local Time, on the date when due, in immediately available funds, without setoff 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 to the applicable account specified on Schedule 2.18 or to such other account as ~~may be specified by~~ the Administrative ~~Agent~~Agent shall from time to time specify in a notice delivered to the Company, except that payments to be made directly to ~~any~~ an Issuing Bank or a Swingline Lender ~~shall be made~~ as expressly provided herein shall be made directly to such parties and ~~except that~~ payments pursuant to Sections 2.15, 2.16, 2.17 and ~~9.03~~ 10.03 shall be made directly to the Persons entitled ~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein~~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 ~~(other than payments on the Eurocurrency Loans)~~ under any Loan Document shall be due on a day that is not a Business Day, the date for such payment ~~shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day~~ (other than ~~a Business Day,~~ as described in the ~~maturity thereof~~ definition of Interest Period) 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and~~ Loan; all other payments hereunder and under each other Loan Document shall be made in ~~dollars~~US Dollars, except as otherwise expressly provided. 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. Any amount payable by the Administrative Agent to one or more Lenders in the national currency of a member state of the European Union that has adopted the Euro as its lawful currency shall be paid in Euro. (b) If at any time insufficient funds are received by and available to the Administrative Agent from any Borrower to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such ~~parties,~~ parties and (ii) second, towards payment of principal of the Loans and unreimbursed LC Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving ~~Loans, Term~~ Loans or amounts owing in respect of any participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, ~~Term Loans and~~ amounts owing in respect of participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving ~~Loans, Term~~ Loans ~~and~~ or amounts owing in respect of participations in LC Disbursements ~~and~~ or Swingline ~~Loans~~ Loans, as applicable, 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, Term~~ Loans and amounts owing in respect of participations in LC Disbursements ~~and~~ or 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 paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ any Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or ~~participant or (C) any disproportionate payment obtained by~~ participant, other than to a ~~Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Borrower 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~~ any Issuing ~~Banks~~ Bank hereunder that the ~~Borrowers~~ applicable Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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 (i) 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 (in the case of an amount denominated in US 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 amount denominated in any Designated Foreign Currency). (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant~~ hereunder to ~~Section 2.04(c)~~or for the account of the Administrative Agent, ~~2.05(e)~~ any Issuing Bank or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~any Swingline Lender, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations are fully paid ~~and/or~~ or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ application to, any future funding obligations of such Lender ~~under any~~ pursuant to Sections 2.05(c), 2.06(d), 2.06(e), 2.07(b), 2.18(d) or 10.03(c), in each case in such ~~Section~~order as shall be determined by the Administrative Agent in its discretion.

Appears in 2 contracts

Samples: Five Year Credit Agreement (Kellogg Co), Credit Agreement (Kellogg Co)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ Holdings or the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The~~ Holdings and the 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 Holdings or the Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or the ~~Borrowers~~ Borrowers, as applicable, in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from Holdings or 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 Banks hereunder that Holdings or the Borrowers will not make such payment, the Administrative Agent may assume that Holdings or the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if Holdings or the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or~~ Section 2.05(f), ~~2.06(a) or (b~~Section 2.05(g), Section 2.06(a), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Credit Agreement (Endeavor Group Holdings, Inc.), Revolving Credit Agreement (Endeavor Group Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) 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~~Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ setoff, deduction 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in dollars, except as expressly specified otherwise. (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~~Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or ~~otherwise~~otherwise (including by exercise of its rights under Section 9.1 of the Security Agreement), 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ either Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to U.S. Borrower or any ~~increase in~~ of its Subsidiaries or Affiliates (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ Each Loan Party 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 Borrowers~~ such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Loan Party in the amount of such participation. If under applicable bankruptcy, insolvency or any similar law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(c) to share in the benefits of the recovery of such secured claim. (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 Banks~~ hereunder that ~~the Borrowers~~ such Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if ~~the Borrowers have~~ such Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(c), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d), 2.18(e) or ~~9.03(c~~11.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Ply Gem Holdings Inc), Credit Agreement (Ply Gem Holdings Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (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(e) or Section 2.05(f), Section 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~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~~Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ setoff, deduction 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 10.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in dollars, except as expressly specified otherwise. (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~~Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or ~~otherwise~~otherwise (including by exercise of its rights under the Pledge Agreements), 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to Borrower or any ~~increase in~~ of its Subsidiaries or Affiliates (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ Each Loan Party 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 Borrowers~~ such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Loan Party in the amount of such participation. If under applicable bankruptcy, insolvency or any similar law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(c)to share in the benefits of the recovery of such secured claim. (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 Banks~~ hereunder that ~~the Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if ~~the Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(c), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d), 2.18(e) or ~~9.03(c~~10.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

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

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under ~~Section~~ Sections 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, ~~except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in~~ dollars, all payments of accrued interest payable on a Loan ~~or LC Disbursement~~ shall be made in dollars, and all other payments under each Loan Document 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 ~~(i) first,~~ towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans,~~ Term ~~Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Term Loans~~, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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 (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving Commitments of that Class or~~ any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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[Intentionally Omitted]. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e) or 2.05(f),~~ 2.06(a) or (bSection 2.06(b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Franchise Group, Inc.), Second Lien Credit Agreement (Franchise Group, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it hereunder or under any other Senior Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such other Senior Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, except payments to be made directly to ~~any~~ an Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Senior 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 ~~(other than payments on the Eurocurrency Loans)~~ under any Senior 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Senior Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ relative amounts of principal of and accrued interest on their ~~respective Revolving Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or an Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or such Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(d), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Borrowings or LC Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, 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 ~~2:00 p.m.,~~ 3:00 p.m. (New York City time (or, in the case of an Alternative Currency, London time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative Agent at the Administrative Agent’s Office for the applicable currency, except payments to be made directly to ~~any~~ the applicable Issuing Bank ~~or Swingline Lender shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. ~~All~~ Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments ~~or prepayments of any Loan~~ by the Borrower hereunder shall be made in to the ~~currency in~~ Administrative Agent, for the account of the respective Lenders to which such ~~Loan~~ payment is ~~denominated~~owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds. Except as otherwise expressly provided herein, all ~~reimbursements of any LC Disbursements~~ payments by the Borrower hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to 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~~such Alternative Currency and in Same Day Funds. If, ~~all payments~~ for any reason, the Borrower is prohibited by any Requirement of ~~accrued interest payable on a Loan~~ Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its pro rata (or ~~LC Disbursement shall be made~~ other applicable share as provided herein) of such payment in ~~dollars, and all other payments under each Loan Document shall be made in dollars~~like funds as received by wire transfer to such Lender’s lending office. (b) If Subject to Section 2.16(e), if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Borrowings and LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Borrowings and LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Borrowings and LC Disbursements then due to such parties. (c) If Subject to Section 2.16(e), if any Lender under the Revolving Facility shall, by exercising any right of setoff 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~~ Advances resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving ~~Loans, Term~~ Loans and ~~participations in~~ LC ~~Disbursements and Swingline Loans~~ Advances and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving ~~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 ~~Loans, Term~~ Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or other Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the applicable Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing ~~Banks~~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~~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(c), ~~2.05(e) or 2.05(f~~2.03(b), ~~2.06(a) or (b), 2.18(d~~2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Tradeweb Markets Inc.), Credit Agreement (Tradeweb Markets Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 270 Park Avenue, New York, New York, except payments to be made ~~directly to any Issuing Bank or Swingline~~ direcxxx xx xxx Xxxxxxx Xxxx xx Xxxxxxxxe Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 relative aggregate ~~amount~~ amounts of principal of and accrued interest on their ~~respective~~ Revolving Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 2 contracts

Samples: Credit Agreement (Dex Media, Inc./New), Credit Agreement (Dex Media, Inc./New)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. ~~(a) Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under ~~Section~~ Sections 2.15, ~~2.16 or~~ 2.16, 2.17, or otherwise) at or 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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~~ Subject to Section 2.17(a), all such payments shall be made to such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, ~~2.17~~ 2.17(b) and (c) and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ under any Loan Document ~~shall~~ is stated to be due on a day that is not a Business Day, the date for such payment shall be extended to the next succeeding Business ~~Day~~Day and, in the case of any principal payments, interest thereon shall be payable at the then applicable rate for the period of extension. If any interest payment on a ~~Eurocurrency~~ Eurodollar Loan ~~becomes~~ is stated to be due and payable on a day other than a Business Day, the ~~maturity thereof~~ date for such interest payment 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 required to be made on the immediately preceding Business Day~~. In the case of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension~~. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by such Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrowers 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 1 contract

Samples: Credit Agreement (Zix Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~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 2.12, 2.13 or 2.15~~, 2.16 or 2.17~~, or otherwise) ~~prior to~~ 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 677 Washington Boulevard, Stamford, Connecticut, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.15 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) ~~first,~~ first towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) ~~second,~~ second towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class participant, other than to Borrower or any ~~increase in~~ Subsidiary or Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). ~~The Borrowers consent~~ 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 Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ 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 ~~Banks~~ Bank hereunder that ~~the Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that ~~the Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if ~~the Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(f), ~~2.05(e) or 2.05(f~~2.14(d), ~~2.06(a) or (b~~2.17(d), 2.18(d) or ~~9.03(c~~11.03(d), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 1 contract

Samples: Credit Agreement (Communications & Power Industries Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Borrowings or LC Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, 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 ~~2:00~~ 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative Agent at the Administrative Agent’s Office, except payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. ~~All~~ Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments ~~or prepayments of any Loan~~ by the Borrower hereunder shall be made in to the ~~currency in~~ Administrative Agent, for the account of the respective Lenders to which such ~~Loan~~ payment is ~~denominated~~owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds. Except as otherwise expressly provided herein, all ~~reimbursements of any LC Disbursements~~ payments by the Borrower hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to 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~~such Alternative Currency and in Same Day Funds. If, ~~all payments~~ for any reason, the Borrower is prohibited by any Requirement of ~~accrued interest payable on a Loan~~ Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its pro rata (or ~~LC Disbursement shall be made~~ other applicable share as provided herein) of such payment in ~~dollars, and all other payments under each Loan Document shall be made in dollars~~like funds as received by wire transfer to such Lender’s lending office. (b) If Subject to Section 2.16(e), if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Borrowings and LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Borrowings and LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Borrowings and LC Disbursements then due to such parties. (c) If Subject to Section 2.16(e), if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term ~~Loans~~ Loans, LC Advances or participations in ~~LC Disbursements or~~ Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term ~~Loans~~ Loans, LC Advances and participations in ~~LC Disbursements and~~ Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ participant, other than to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase in~~ Subsidiary or other Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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~~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(e) or 2.05(f~~2.05(c), ~~2.06(a~~2.03(b) or (bg), ~~2.18(d~~2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 1 contract

Samples: Credit Agreement (Nasdaq Omx Group, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Issuer shall make each payment required to be made by it under any ~~Loan~~ Note Document (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15, 2.16 or 2.17,~~ 2.17 or otherwise) prior to the time expressly required hereunder or under such other ~~Loan~~ Note Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), ) on the date when due, in immediately available funds, without setoff or counterclaim. Except as otherwise expressly provided herein, all payments by the Issuer hereunder shall be made to the Administrative Agent, for the account of the respective Purchasers 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. on the date specified herein. Any amounts received after such time on any date ~~may, in the discretion of the Administrative Agent,~~ shall 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 ~~such account as may be specified by~~ the Administrative Agent~~, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and~~ ’s Office except that payments pursuant to ~~Sections~~ Section 2.11(i), Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other ~~Loan~~ Note 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 Unless otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ under any ~~Loan~~ Note 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments under each Note Document of principal or ~~prepayments~~ interest in respect of any ~~Loan~~ Note (or of any breakage indemnity in respect of any Note) shall be made in the currency of such Note and, except as otherwise set forth in ~~which such Loan is denominated~~any Note Document, ~~all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and~~ all other payments under each ~~Loan~~ Note Document shall be made in ~~dollars~~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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If If, other than as provided elsewhere herein, any ~~Lender~~ Purchaser shall, by exercising any right of setoff or ~~counterclaim or otherwise~~counterclaim, 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~~ Notes resulting in such ~~Lender~~ Purchaser receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans~~ Notes and accrued interest thereon than the proportion received by any other ~~Lender~~Purchaser, then the ~~Lender~~ Purchaser receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans~~ Notes of other ~~Lenders~~ Purchasers to the extent necessary so that the benefit of all such payments shall be shared by the ~~Lenders~~ Purchasers ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans~~Notes, 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 paragraph shall not be construed to apply to (Ax) any payment or prepayment made by ~~such Borrower~~ or on behalf of the Issuer or any other Note Party pursuant to and in accordance with the express terms of this Agreement or (~~including the application of funds arising from existence of a Defaulting Lender), (B~~y) any payment obtained by a ~~Lender~~ Purchaser as consideration for the assignment of or sale of a participation in any of its ~~Loans or participations in LC Disbursements or Swingline Loans~~ Notes to any assignee or participant or ~~(C) any disproportionate payment obtained by a Lender~~ the termination of any ~~Class as a result~~ Purchaser’s commitment and non-pro rata repayment of Liens pursuant to Section 2.19(b). For purposes of subclause (c) of the ~~extension by Lenders~~ definition of ~~the maturity date or expiration date of some but not all Loans or Revolving Commitments of~~ Excluded Taxes, a Purchaser that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The Borrowers consent to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring acquires a participation pursuant to ~~the foregoing arrangements may exercise against the Borrowers rights of setoff and counterclaim with respect to~~ this Section 2.18(c) shall be treated as having acquired such participation ~~as fully as if~~ on the earlier date(s) on which such ~~Lender were a direct creditor of~~ Purchaser acquired the ~~Borrowers~~ applicable interest(s) in the ~~amount of~~ Note(s) to which such ~~participation~~participation relates. (d) Unless the Administrative Agent shall have received notice from the ~~Borrower~~ Issuer prior to the date on which any payment is due to the Administrative Agent for the account of the ~~Lenders or the Issuing Banks~~ Purchasers hereunder that the ~~Borrowers~~ Issuer will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Issuer has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole ~~discretion~~discretion (without any obligation to do so), distribute to the ~~Lenders or Issuing Banks, as the case may be,~~ Purchasers the amount due. In such event, if the ~~Borrowers have~~ Issuer has not in fact made such payment, then each of the ~~Lenders or Issuing Banks, as the case may be,~~ Purchasers severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such ~~Lender or Issuing Bank~~ Purchaser 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. (e) If any ~~Lender~~ Purchaser shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c)~~2.06, ~~2.05(e) or 2.05(f), 2.06(a) or (b),~~ Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (notwithstanding any contrary provision hereof), ~~(i)~~ apply any amounts thereafter received by the Administrative Agent for the account of such ~~Lender~~ Purchaser to satisfy such ~~Lender~~Purchaser’s obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 1 contract

Samples: First Lien Note Purchase Agreement (KC Holdco, LLC)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 U.S. Government Securities Business Day for purposes of calculating interest thereon. All such payments shall be made to such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ EurodollarSOFR Loans) 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. If any payment on a ~~Eurocurrency~~ EurodollarSOFR Loan becomes due and payable on a day other than a U.S. Government Securities Business Day, the maturity thereof shall be extended to the next succeeding U.S. Government Securities 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by such Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrowers 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.preceding

Appears in 1 contract

Samples: Credit Agreement (Blue Bird Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or any Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other payments hereunder and under each other Loan Document 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 (i) first, towards payment ~~of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts~~ of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ Disbursements, Swingline Loans or Protective Advances resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, ~~Term Loans~~ and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving ~~Loans, Term~~ Loans and participations in LC ~~Disbursements and~~ Disbursements, Swingline Loans and Protective Advances of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term~~ Loans and participations in LC ~~Disbursements~~ Disbursements, Swingline Loans and ~~Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC ~~Disbursements or~~ Disbursements, Swingline Loans or Protective Advances to any ~~assignee~~ Eligible Assignee, to the Borrower or ~~participant~~ any Subsidiary or other Affiliate thereof in a transaction that complies with the terms of Section 9.04(e) or (~~C) any disproportionate payment obtained by a Lender of any Class~~ f), as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c), 2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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

Samples: Credit Agreement (Arconic Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Borrowers shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto 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 All payments by the Borrowers hereunder with respect to principal of and interest on Loans denominated in an Alternative Currency shall be made in such Alternative Currency to such account as may be specified by the Administrative Agent. Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan or Term Benchmark Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such Borrower~~ the 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The Borrowers consent to the foregoing and ~~agrees~~agree, 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 ~~Borrowers~~ Borrowers’ rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(e) or Section 2.04(f), ~~2.05(e~~Section 2.05(a) or ~~2.05(f~~Section 2.05(b), ~~2.06(a~~Section 2.17(d), Section 9.03(c) or ~~(b), 2.18(d) or 9.03(c~~Section 9.03(d), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 1 contract

Samples: Credit Agreement (Viasat Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower and each LC Subsidiary 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 ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) prior to ~~the time expressly required hereunder or under such other Loan Document for such payment (or~~12:00 noon, ~~if no such time is expressly required, prior to 2:00 p.m., New York City time)~~Local Time, on the date when due, in immediately available funds, without ~~setoff~~ 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 to such account as ~~may be specified by~~ the Administrative ~~Agent~~Agent shall from time to time specify at its respective Applicable Offices; provided, ~~except~~ however, that payments to be made directly to ~~any~~ the Issuing Bank or Swingline Lender ~~shall be made~~ as expressly provided herein and ~~except that~~ payments pursuant to Sections 2.14, 2.15, 2.16, ~~2.17~~ 2.19 and ~~9.03~~ 10.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans) under any Loan Document~~ 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments hereunder of principal or ~~prepayments~~ interest or fees in respect of any ~~Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC Disbursement shall be made in ~~dollars, and~~ the currency of such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in ~~dollars~~Dollars at the Exchange Rate in effect at such time of payment, if applicable. 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 If, at any ~~time~~ 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of ~~setoff~~ set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on its Loans of any ~~of its Revolving Loans, Term Loans~~ Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in ~~the Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements and Swingline ~~Loans~~Loans and accrued interest thereon; provided, ~~provided~~ however, 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 paragraph shall not be construed to apply to ~~(A)~~ any payment made ~~by such Borrower~~ pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant or (C)~~ participant, other than to GrafTech, Global, the Borrower, any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class Subsidiary or any ~~increase in~~ Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans~~ this paragraph shall apply). Each of ~~Lenders that have consented to any such extension. The Borrowers consent~~ GrafTech, Global, the Borrower and each LC Subsidiary 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 GrafTech, Global, the ~~Borrowers~~ Borrower or such LC Subsidiary rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of GrafTech, Global, the ~~Borrowers~~ Borrower or such LC Subsidiary in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower or an LC Subsidiary prior to the date on which any payment is due to the Administrative Agent for the account of all or certain of the Lenders or the Issuing ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower or such LC Subsidiary will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower or such LC Subsidiary has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the applicable Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower or such LC Subsidiary has not in fact made such payment, then each of the applicable Lenders or the Issuing ~~Banks~~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 reasonably determined by the Administrative Agent in accordance with banking industry ~~rules~~ practices on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant~~ to ~~Section 2.04(c), 2.05(e)~~ the Administrative Agent or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c)~~another Lender under this Agreement, then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (notwithstanding any contrary provision hereof), ~~(i)~~ apply any amounts thereafter received by ~~the Administrative Agent~~ it for the account of such Lender to satisfy such Lender’s obligations under ~~such Section~~ this Agreement until all such unsatisfied obligations are fully ~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 1 contract

Samples: Credit Agreement (Graftech International LTD)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 ~~2:00 p.m.~~12:00 noon, New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections ~~2.15~~2.14, ~~2.16, 2.17~~ 2.15 or 2.16 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest or commitment fees, interest or commitment fees, as applicable, thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, under this Agreement and ~~all~~ each other ~~payments under each~~ Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and ~~Swingline Loans and~~ accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements ~~and Swingline Loans~~ of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, Term Loans and participations in LC ~~Disbursements and Swingline Loans,~~ 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee or participant or (C) any disproportionate payment obtained by a Lender~~ Eligible Assignee. It is acknowledged and agreed that the foregoing provisions of ~~any Class as a result of~~ this paragraph are between the ~~extension by~~ Lenders of and no consent from the ~~maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in~~ Borrower is required with respect ~~of Loans of Lenders that have consented~~ to ~~any such extension~~these provisions. The ~~Borrowers consent to the foregoing and~~ Borrower 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.04(d) or (e), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(a) or (b), ~~2.18(d~~2.16(e), 2.17(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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

Samples: Credit Agreement (Crown Castle International Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ 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 2.15, 2.16 or 2.17, 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 ~~2:00~~ 1:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ any defense, setoff, recoupment 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 such account or accounts as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or any Swingline Lender shall be ~~made as expressly provided herein and except that~~ so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 receipt thereof. If any payment (under this Agreement or any other ~~than payments on the Eurocurrency Loans) 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. If~~ Day (unless, in the case of any such payment made under Section 2.10 or any payment of interest on ~~a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~the Obligations hereunder, ~~the maturity thereof shall be extended to the~~ such next succeeding Business Day ~~unless~~ would fall in the ~~result of such extension would be to extend such payment into another~~ next calendar month, in which ~~event~~ case the date for such payment shall be ~~made~~ on the ~~immediately~~ next preceding Business Day~~. In~~ ) and, in the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such ~~extension~~extension . All payments hereunder of principal or ~~prepayments~~ interest in respect of any Loan ~~shall~~ or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency ~~in which~~ of such ~~Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a~~ Loan or LC ~~Disbursement shall be made in dollars, and~~ Disbursement; all other ~~payments~~ payment hereunder and under each other Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC [[6121596]] Disbursements and Swingline Loans of other Lenders to the extent necessary so that the ~~benefit~~ aggregate amount 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, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ 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 Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any ~~assignee~~ Eligible Assignee or ~~participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of~~ to the ~~extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class~~ Borrower or any ~~increase~~ Subsidiary in a transaction that complies with the ~~Applicable Rate in respect~~ terms of ~~Loans~~ Section 9.04(f) (as to which the provisions of ~~Lenders that have consented to any such extension~~this paragraph shall apply). The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as ~~the case may be~~applicable, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as ~~the case may be~~applicable, 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~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e~~2.05(d) or ~~2.05(f~~(e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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~~ in respect of such ~~Section~~ payment until all such unsatisfied obligations ~~are fully paid~~ have been discharged and/or (ii) hold any such amounts in a segregated account as cash collateral for, and ~~to be applied~~ 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. (f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any compliance certificate delivered under Section 5.01(c), shall prove to have been materially inaccurate, and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Total Net Leverage Ratio), then, if such inaccuracy is discovered prior to the termination of the Commitments and the repayment in full of the principal of all Loans and the reduction of [[6121596]] the LC Exposure to zero, the Borrower shall pay to the Administrative Agent, for distribution to the Lenders and the Issuing Banks (or former Lenders and Issuing Banks) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement.

Appears in 1 contract

Samples: Amendment and Restatement Agreement (Chemours Co)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ setoff, recoupment, defense 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank ~~or Swingline Lender~~ shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, ~~2.16~~2.16,2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ EurocurrencyTerm SOFR Loans) 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. If any payment on a ~~Eurocurrency~~ EurocurrencyTerm SOFR Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements ~~or Swingline Loans~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and Swingline Loans~~ and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ Holdings or the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. ~~The Borrowers consent~~ Holdings and 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 Holdings or the ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Holdings or the ~~Borrowers~~ Borrower, as applicable, in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from Holdings or 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 Banks hereunder that Holdings or the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that Holdings or the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if Holdings or the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.05(e), ~~2.05(e) or~~ Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lxxxxx as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

Appears in 1 contract

Samples: First Lien Credit Agreement (First Advantage Corp)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees~~ fees, or reimbursement of LC ~~Disbursements,~~ Disbursement or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, free and clear of and without ~~setoff~~ setoff, recoupment, defense 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans or the EURIBOR Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan or a EURIBOR Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 applicable amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of applicable interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the applicable amounts of interest and fees then due to such parties, and (ii) second, towards payment of applicable principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Revolving Loans, Term~~ Loans of a given Class or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or participations in LC Disbursements ~~and~~ or Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with outstanding Loans of the same Class or participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving Loans, Term~~ Loans ~~and~~ of such Class or 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 Loans, Term~~ Loans ~~and~~ of such Class or participations in LC ~~Disbursements and Swingline Loans,~~ 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant (including a Purchasing Borrower Party) or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or ~~Revolving~~ Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ Borrower, as applicable, 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, 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. (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(e~~) or~~ ), Section 2.05(f), Section 2.06(a~~) or (b~~), Section 2.06(b), Section 2.06(c), Section 2.18(d) or ~~9.03(c~~Section 9.03(d), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as ~~cash collateral~~ Cash Collateral for, and to be applied to, any future funding obligations of such Lender under any such Section. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest

Appears in 1 contract

Samples: Credit Agreement (N-Able, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. ~~(a) Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, premium, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 or fees thereon. All such payments shall be made to such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or ~~Swingline~~ the Swing Line Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in ~~the currency in which such Loan is denominated~~dollars, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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 paragraph shall not be construed to apply to (A) any payment made by such Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The 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 Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrowers 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 Banks hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 1 contract

Samples: Credit Agreement (Digital Media Solutions, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~dollars except as otherwise expressly provided herein. (b) If Subject to Section 4.02 of the Collateral Agreement, 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans, Incremental Term Loans, Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Incremental Term Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other ~~Lender~~applicable Lender as required under the Loan Documents (including, without limitation, pursuant to Section 4.02 of the Collateral Agreement), then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Incremental Term Loans and Term Loans and participations in LC Disbursements and Swingline Loans of other applicable 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, Incremental Term Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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 (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionparticipant. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If If, as a result of any ~~Lender shall fail~~ restatement of or other adjustment to ~~make~~ the financial statements of the Borrower or for any ~~payment required to be made by it pursuant to Section 2.04(c)~~other reason, ~~2.05(e)~~ the Borrower or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then~~ the ~~Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (notwithstanding any contrary provision hereof),~~ Lenders determine that (i) ~~apply~~ the Total Net Leverage Ratio as calculated by or on behalf of the Borrower as of any ~~amounts thereafter received by~~ applicable date was inaccurate and (ii) a proper calculation of such ratio would have resulted in higher interest for any period, the Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the applicable Issuing Bank, as the case may be, within five Business Days after written demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and with any such demand by the Administrative Agent being excused), an amount equal to the excess of the amount of interest that should have been paid for such period over the amount of interest actually paid for such period. This clause shall not limit the rights of the Administrative Agent, any Lender ~~to satisfy such Lender~~or the applicable Issuing Bank, as the case may be, under Section 2.05(i), 2.12(a), 2.12(b) or 2.13(c) or under Article VII. The Borrower’s obligations under this Section 2.18(e) shall survive the termination of the Commitments and acceleration of the Loans pursuant to Section 7.02 and the repayment of all other Loan Document Obligations after an acceleration of the Loans pursuant to Sections 8.02. Except in any case where a demand is excused as provided above, any additional interest under this Section 2.18(e) shall not be due and payable until five Business Days after a written demand is made for such ~~Section until all~~ payment by the Administrative Agent and accordingly, any nonpayment of such ~~unsatisfied obligations are fully paid and/or (ii) hold~~ interest or fees as result of any such ~~amounts in~~ inaccuracy shall not constitute a ~~segregated account as cash collateral for~~Default (whether retroactively or otherwise), and ~~to be applied to, any future funding obligations~~ none of such ~~Lender under~~ additional amounts shall be deemed overdue or accrue interest at the default rate, in each case at any time prior to the date that is five Business Days following such ~~Section~~demand.

Appears in 1 contract

Samples: Credit Agreement (AgroFresh Solutions, Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ . (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 2.15, 2.16 or 2.17, 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 2:00 p.m., New York City time), on the date 57 when due, in immediately available funds, without setoff 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 270 Park Avenue, New York, New York, except payments to be made ~~directly to any Issuing Bank or Swingline~~ direxxxx xx xxx Xxxxxxx Xxxx xx Xxxxxxxne Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 ~~(other than payments on the Eurocurrency Loans)~~ 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~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, 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~~ interest, and (ii) the provisions of this paragraph shall not be construed to apply to ~~(A)~~ any payment made by ~~such~~ the Borrower pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements ~~or Swingline Loans~~ to any assignee or ~~participant~~ participant, other than to the Borrower or any Subsidiary or Affiliate thereof (C) as to which the provisions of this paragraph shall apply). For purposes of determining the respective amounts of any purchases required by this paragraph in respect of any disproportionate payment ~~obtained~~ received by ~~a Lender~~ any Lender, the amount of ~~any Class as a result~~ each Tranche B Euro Loan shall be the US Dollar Equivalent of the ~~extension~~ principal amount thereof at the time the payment giving rise to such purchases is received by ~~Lenders of~~ the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionapplicable Lender. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 ~~Banks~~ Bank hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), ~~2.05(e) or 2.05(f), 2.06(a~~2.05(d) or (be), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 's obligations under such ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 1 contract

Samples: Credit Agreement (Dex Media International Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) at or 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 2:00 p.m., New York City time), on the date when due), in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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~~ Except as otherwise expressly provided herein, all such payments shall be made in Dollars to such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto 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 Except as otherwise provided herein, if any payment ~~(other than payments on the Eurocurrency Loans)~~ 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. If any payment on a ~~Eurocurrency~~ SOFR Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document 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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal ~~and unreimbursed LC Disbursements~~ then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal ~~and unreimbursed LC Disbursements~~ then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its ~~Revolving Loans,~~ Term ~~Loans and participations in LC Disbursements and Swingline~~ Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the ~~Revolving 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~~ Term Loans~~, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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), (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans or participations in LC Disbursements or Swingline~~ Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans ~~or Revolving Commitments~~ of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower’s rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks~~ hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders ~~or Issuing Banks, as the case may be,~~ the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders ~~or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.06(a), ~~2.05(e) or 2.05(f~~Section 2.06(b), ~~2.06(a) or (b),~~ Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 1 contract

Samples: Credit Agreement (Gogo Inc.)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each Borrower~~ The Borrowers shall make each payment required to be made ~~by it~~ hereunder or under any other ABL Loan Document (whether of principal, interest, fees or ~~reimbursement of LC Disbursements~~Reimbursement Obligations, or of amounts payable under Section ~~2.15~~2.11, ~~2.16~~ 2.12 or ~~2.17~~2.14, or otherwise) ~~prior to~~ on or before the time expressly required hereunder or under such other ABL Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ setoff, deduction 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 ~~such account as may be specified by~~ the Administrative ~~Agent~~Agent at its offices at 100 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Loan Portfolio Manager – OSG Bulk Ships, Inc., Fax: 200-000-0000, Email: txxxxx.xxxxxxxx@xxxxxxxxxx.xxx, except payments to be made directly to ~~any~~ the Issuing Bank or the Swingline Lender ~~shall be made~~ as expressly provided herein and except that payments pursuant to ~~Sections 2.15~~Section 2.11, ~~2.16~~2.12, ~~2.17~~ 2.14 and ~~9.03~~ 11.03 shall be made directly to the ~~Persons~~ persons entitled thereto and payments pursuant to other ABL Loan Documents shall be made to the ~~Persons~~ persons specified therein. 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 ~~(other than payments on the Eurocurrency Loans)~~ under any ABL Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day~~. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day~~, ~~the 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~~and, in ~~which event such payment shall be made on the immediately preceding Business Day. In~~ the case of any payment ~~of principal pursuant to the preceding two sentences~~accruing interest, interest thereon shall be payable ~~at the then applicable rate~~ for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each ABL Loan Document shall be made in ~~dollars~~Dollars; provided that, LC Disbursements paid by the Borrowers in respect of Letters of Credit denominated in an Alternative Currency shall be made in such Alternative Currency. (b) If Subject to Sections 2.09(c) and 9.01, if at any time insufficient funds are received by and available to the Administrative Agent to pay ~~fully~~ in full all amounts of principal, ~~unreimbursed LC Disbursements~~Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and ~~unreimbursed LC Disbursements~~ Reimbursement Obligations then due to such parties. (c) If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 11.08) or ~~otherwise~~otherwise (including by exercise of its rights under the Security Documents), 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans, ~~Term Loans~~ and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving 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 Loans, ~~Term Loans~~ 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~~ interest, and (ii) the provisions of this ~~paragraph~~ Section 2.13(c) shall not be construed to apply to ~~(A)~~ any payment made by ~~such Borrower~~ the Borrowers pursuant to and in accordance with the express terms of this Agreement ~~(including the application of funds arising from existence of a Defaulting Lender), (B)~~ or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans~~ Revolving Loans, or participations in LC Disbursements or Swingline Loans to any ~~assignee~~ Eligible Assignee or ~~participant or (C)~~ participant, other than to any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class Company or any ~~increase in~~ Affiliate thereof (as to which the ~~Applicable Rate in respect~~ provisions of ~~Loans of Lenders that have consented to any such extension~~this Section 2.13(c) shall apply). ~~The Borrowers consent~~ Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable ~~law~~Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the Borrowers~~ each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrowers~~ such Loan Party in the amount of such participation. If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.13(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.13(c) to share in the benefits of the recovery of such secured claim. (d) Unless the Administrative Agent shall have received written notice from the Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing ~~Banks~~ Bank hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such ~~assumption and in its sole discretion~~assumption, distribute to the Lenders or the Issuing ~~Banks~~Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing ~~Banks~~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 or practices on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section ~~2.04(c~~2.02(c), ~~2.05(e~~2.13(d), 2.16(d), 2.17(d), 2.17(e) or ~~2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c~~11.03(e), then the Administrative Agent may, in its discretion ~~and in the order determined by the Administrative Agent~~ (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 ~~Section~~ 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 to be applied to, any future funding obligations of such Lender under any such Section~~paid.

Appears in 1 contract

Samples: Abl Credit Agreement (Overseas Shipholding Group Inc)

Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) ~~Each~~ The Borrower shall make each payment required to be made by it under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, 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 2:00 p.m., New York City time), on the date when due, in immediately available funds, without ~~setoff~~ condition or deduction for any counterclaim, recoupment or setoff. 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 such account as may be specified by the Administrative Agent, except payments to be made directly to any Issuing Bank or the Swingline Lender shall be made as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto 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 (other than payments on the ~~Eurocurrency~~ Eurodollar Loans) 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. If any payment on a ~~Eurocurrency~~ Eurodollar Loan becomes due and payable on a day other than a Business Day, the 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 of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan shall be made in the currency in which such Loan is denominated, all reimbursements of any LC Disbursements shall be made in dollars, all payments of accrued interest payable on a Loan or LC Disbursement shall be made in dollars, and all other payments under each Loan Document shall be made in ~~dollars~~dollars except as otherwise expressly provided herein. (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 (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties *Confidential Treatment Requested. Omitted portions filed with the Commission. entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of setoff 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 resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving ~~Loans, Term~~ Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving ~~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 ~~Loans, 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 paragraph shall not be construed to apply to (A) any payment made by ~~such~~ 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 (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Revolving Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extensionparticipant. The ~~Borrowers consent~~ 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 ~~Borrowers~~ Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrowers~~ 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 Banks hereunder that the ~~Borrowers~~ Borrower will not make such payment, the Administrative Agent may assume that the ~~Borrowers have~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption and in its sole discretion, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the ~~Borrowers have~~ Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, 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. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(e) or 2.05(f), 2.06(a) or (b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 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 to be applied to, any future funding obligations of such Lender under any such Section.

Appears in 1 contract

Samples: Credit Agreement (Cubist Pharmaceuticals Inc)

Common use of Payments Generally; Pro Rata Treatment; Sharing of Setoffs Clause in Contracts