Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. (b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day. (i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. (ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error. (d) 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 Credit Extension 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. (e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c). (f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. (g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 4 contracts
Samples: Credit Agreement, Credit Agreement (Time Inc.), Credit Agreement (Time Inc.)
Payments Generally. (a) Except as Unless otherwise provided hereinspecified, including pursuant to Section 3.01, all payments Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or of amounts payable under Section 3.6, 3.7 or 3.8 or otherwise) prior to 10:00 a.m., New York City time, on the Borrower shall be made date when due, in immediately available funds, without condition or deduction for any counterclaim, defense, recoupment recoupment, set-off or setoffcounterclaim. Except as otherwise expressly provided hereinAny amounts received after such time on any date may, all payments by in the Borrower hereunder shall be made to the discretion of Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case 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 Administrative Agent to the applicable account designated to Borrower by Administrative Agent, except that payments pursuant to Sections 3.6, 3.7, 3.8 and 12.10 shall be made directly to the Persons entitled thereto. Administrative Agent shall distribute any applicable interest or fee shall continue such payments received by it for the account of any other Person to accrue.
(b) the appropriate recipient promptly following receipt thereof. If any payment to hereunder shall be made by the Borrower shall come due on a day other than that is not a Business Day, the date for payment shall be made on extended to the next following succeeding Business DayDay (or, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the event that the next succeeding Business Day falls in the succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
), and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder of (ia) principal or interest in respect of any Term Loan or (b) any other amount due hereunder or under any other Credit Document shall be made in Dollars. Any payment required to be made by Administrative Agent hereunder shall be deemed to have been made by the time required if 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 Administrative Agent to make such payment. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 (i) the Federal Funds Overnight LIBO Rate and (ii) a rate reasonably 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 (c) shall be conclusive, absent demonstrable error.
(d) If any Lender makes available shall fail to the Administrative Agent funds for make any Loan payment required to be made by it pursuant to the immediately preceding sentence, then Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by Administrative Agent for the account of 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with satisfy such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of obligations under such sentence until all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lenderunsatisfied obligations are fully paid.
Appears in 4 contracts
Samples: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy LP)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (orthe relevant currency, in as the case of principal of or interest on any Obligations denominated inmay be, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment following receipt thereof in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, may be deemed in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed Administrative Agent’s sole discretion received on the next succeeding Business Day and any applicable interest or fee fees shall continue to accrue.
(b) If accrue thereon. Except as otherwise provided herein, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the BorrowerBorrowers, the interest rate applicable to Base Rate Loans. If the Borrower Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower Borrowers the amount of such interest paid by the Borrower Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower Borrowers shall be without prejudice to any claim the Borrower Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer Issuers hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 the L/C Issuer, 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 Borrowers with respect to any amount owing under this clause (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V 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.
(ed) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c11.04(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 10.04(c11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c11.04(c).
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) The Borrowers hereby authorize each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Lender, to charge from time to time against any or all of the Borrowers’ accounts with such Lender any amount so due.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender9.03.
Appears in 4 contracts
Samples: Credit Agreement (Element Solutions Inc), Credit Agreement (APi Group Corp), Credit Agreement (Element Solutions Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly specifically provided herein, all payments by the Borrower hereunder under this Agreement 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business DayBorrower, payment shall be made on without set-off, counterclaim or deduction of any kind, to the next following Business DayAdministrative Agent for the ratable account of the Lenders entitled thereto, and such extension the Letter of time shall be reflected in computing interest Credit Issuer, the Administrative Agent or feesthe Swingline Lender, as the case may be; provided that, if such extension would cause payment of interest not later than 12:00 Noon (New York time) on or principal of Eurocurrency Rate Loans to the date when due and shall be made in the next succeeding calendar month, such payment shall be made on the Dollars in immediately preceding Business Day.
(i) Unless available funds at the Administrative Agent shall have received Agent’s Office, it being understood that written or facsimile notice from a Lender prior to by the proposed time of any Borrowing that such Lender will not make available Borrower to the Administrative Agent such Lenderto make a payment from the funds in the Borrower’s share account at the Administrative Agent’s Office shall constitute the making of such Borrowing, payment to the extent of such funds held in such account. The Administrative Agent will thereafter cause to be distributed on the same day (if payment was actually received by the Administrative Agent may assume that such Lender has made such share available prior to 2:00 p.m. (New York time) on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available day) like funds relating to the Borrower payment of principal or interest or Fees ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:00 p.m. (New York time) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a corresponding amount. In day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such event, if a Lender has not extension at the applicable rate in fact made its share effect immediately prior to such extension.
(c) Subject to the terms of the applicable Borrowing available Intercreditor Agreement, (x) any proceeds of the sale, transfer or other disposition of Collateral outside of the ordinary course of business received by the Administrative Agent after an Event of Default has occurred and is continuing or (y) any other proceeds of Collateral received by the Administrative Agent after an Event of Default specified in Section 11.5 or a termination of the Total Commitment or acceleration of the Obligations under this Agreement pursuant to Section 11 has occurred and is continuing shall in the case of either (x) or (y) be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent, then the applicable Lender Security Agents and the Borrower severally agree Letter of Credit Issuer from the Credit Parties (other than in connection with Secured Cash Management Agreements and Secured Hedge Agreements), second, to pay any fees or expense reimbursements then due to the Lenders from the Credit Parties (other than in connection with Secured Cash Management Agreements and Secured Hedge Agreements), third, to pay interest due in respect of the Protective Advances, fourth, to pay the principal of the Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Protective Advances) ratably, sixth, to prepay principal on the remaining Loans, Unpaid Drawings and any Specified Secured Hedge Agreement, ratably, seventh, to pay an amount to the Administrative Agent forthwith on demand equal to one hundred five percent (105%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid Unpaid Drawings, to be held as cash collateral for such corresponding amount in immediately available funds with interest thereonObligations, for each day from and including the date such amount is made available eighth, to the Borrower payment of any amounts owing with respect to but excluding Secured Hedge Agreements, ninth, to payment of any amounts owing with respect to Secured Cash Management Agreements, and tenth, to the date payment of payment any other Obligation due to the Administrative Agent or any Secured Party.
(d) At the election of the Administrative Agent, at all payments of principal, interest, Unpaid Drawings, Fees, reimbursable expenses (A) including, without limitation, all reimbursement for fees and expenses pursuant to Section 14.5), and other sums payable under the Credit Documents that are not paid when due in accordance with the case Credit Documents (after giving effect to any applicable grace period(s)), may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.3 or a deemed request as provided in this Section or may be deducted from any deposit account of the Credit Parties maintained with the Administrative Agent. The Borrower hereby irrevocably authorizes solely to the extent a payment is not paid by a Credit Party by the time when required to be made by such Lenderpaid, the greater of the Federal Funds Rate and a rate as reasonably determined by (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and Fees as it becomes due hereunder or any other amount due under the Credit Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Section 14.5) and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.3 and (ii) the Administrative Agent in connection to charge any deposit account of any Credit Party maintained with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for each payment of principal, interest and Fees as it becomes due hereunder or any other amount due under the same or an overlapping period, Credit Documents; provided that in either case the Administrative Agent shall promptly remit to notify the Borrower the amount of any such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agentor charge.
(iie) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C the Letter of Credit Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLetter of Credit Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C IssuersLetter of Credit Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds Letter of Credit Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 4 contracts
Samples: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender's Loan included in the greater of the Federal Funds Rate and a rate determined by applicable Borrowing. If such Lender does not pay such amount forthwith upon 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereofAgent's demand therefor, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of may make a demand therefor upon the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such dateBorrower, and no Lender the Borrower shall be responsible pay such amount to the Administrative Agent, together with interest thereon for the failure Compensation Period at a rate per annum equal to the rate of any other Lender interest applicable to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) the applicable Borrowing. Nothing herein shall be deemed to obligate relieve any Lender from its obligation to obtain the funds for any Loan in any particular place or manner fulfill its Commitment or to constitute a representation by prejudice any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by rights which the Administrative Agent under this Agreement or the Borrower may have against any Lender as a result of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, default by such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such LenderLender hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Toyota Motor Credit Corp), Credit Agreement (Toyota Motor Credit Corp), Credit Agreement (Toyota Motor Credit Corp)
Payments Generally. After the Initial Interest Period, each interest accrual period thereafter (aeach, an “Interest Period”) Except shall commence on the fifteenth (15th) calendar day of a calendar month and ending on (and including) the fourteenth (14th) calendar day of the following calendar month; provided, that in the event that the Agent elects to reset LIBOR as otherwise provided herein, including pursuant to Section 3.01, all payments to be made by in the Borrower definition of the term “Interest Determination Date” (i) the Interest Period then in effect shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by end on (and include) the Borrower hereunder shall be made calendar day prior to the Administrative AgentSecuritization Date and (ii) a new Interest Period shall commence on the Securitization Date and shall end on (and include) the next fourteenth (14th) day of a calendar month to occur. For purposes of making payments hereunder, but not for purposes of calculating interest accrual periods, if the account of the respective Lenders to day on which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds due is not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment then amounts due on such date shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made due on the immediately preceding Business Day.
(i) Unless the Administrative . Agent shall have received notice the right from a Lender prior time to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and maytime, in reliance its sole discretion, upon such assumptionnot less than ten (10) days prior written notice to Borrower, make available to change the Borrower Monthly Payment Date to a corresponding amount. In such eventdifferent calendar day and, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative requested by Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit execute an amendment to the Borrower the amount of this Agreement to evidence such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agentchange; provided, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender however, that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative if Agent shall have received notice from elected to change the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such paymentMonthly Payment Date as aforesaid, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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 Lenderhave the option, without interest.
(e) The obligations of but not the Lenders hereunder to make Loansobligation, to fund participations in Letters of Credit adjust the Interest Period and to make payments the Interest Determination Date accordingly. All amounts due pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under payable without setoff, counterclaim, defense or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or any other Obligations then owing to such Lenderdeduction whatsoever.
Appears in 3 contracts
Samples: First Mezzanine Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.), Mezzanine Loan Agreement (Clipper Realty Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (orthe relevant currency, in as the case of principal of or interest on any Obligations denominated inmay be, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment following receipt thereof in like funds as received by wire transfer to such LenderXxxxxx’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, may be deemed in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed Administrative Agent’s sole discretion received on the next succeeding Business Day and any applicable interest or fee fees shall continue to accrue.
(b) If accrue thereon. Except as otherwise provided herein, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency EURIBO Rate Loans or Term SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of EURIBO Rate Loans, Term SOFR Loans or RFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such LenderXxxxxx’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the BorrowerBorrowers, the interest rate applicable to Base Rate Loans. If the Borrower Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower Borrowers the amount of such interest paid by the Borrower Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower Borrowers shall be without prejudice to any claim the Borrower Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer Issuers hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 the L/C Issuer, 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 Borrowers with respect to any amount owing under this clause (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender Xxxxxx as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V 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.
(ed) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c11.04(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 10.04(c11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c11.04(c).
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) The Borrowers hereby authorize each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Xxxxxx, to charge from time to time against any or all of the Borrowers’ accounts with such Lender any amount so due.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender9.03.
Appears in 3 contracts
Samples: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currencynoon, in each case central time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Percentage Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City 12:00 noon, central time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the definition of “Interest Period,” if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause .
(c) Unless the Borrower or any Lender has notified the Administrative Agent prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon (1) in respect of each day of the first two Business Days from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date such amount is repaid to the Administrative Agent in immediately available funds, at the Federal Funds Rate from time to time in effect, and (2) in respect of payment each day after the first two Business Days from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds, at the Base Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to (1) for the first two Business Days of any Compensation Period, the Federal Funds Rate from time to time in effect, and (2) for each other day of any Compensation Period, the interest rate applicable to the applicable Borrowing. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Comstock Resources Inc), Credit Agreement (Comstock Resources Inc), Credit Agreement (Comstock Resources Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to an Approved Foreign 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 (or, in the case of principal of or interest on any Obligations for Dollar-denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) payments and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder in an Approved Foreign 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 Approved Foreign Currency and in Same Day Funds not later than 2:00 p.m. (London time) (or, if earlier, 9:00 a.m. New York city time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any 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. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on after the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, specified above shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Benchmark Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationSame Day Funds at the applicable Overnight Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii) if any Lender failed to make such payment (including, and (B) without limitation, failure to fund participations in the case respect of a payment to be made by the Borrowerany Letter of Credit or Swing Line Loan), the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall forthwith on demand pay such interest to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the same or an overlapping period, period from the date such amount was made available by the Administrative Agent shall promptly remit to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Overnight Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit or Swing Line Loan) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension set forth in Article IV or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such LenderXxxxxx’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)
Payments Generally. (a) Except as Unless otherwise provided specified herein, including pursuant to Section 3.01, all payments the Borrower shall make each payment required to be made by it hereunder (including under Section 2.12, 2.13, 2.16 or otherwise) prior to 1:00 p.m., Local Time, on the Borrower shall be made date when due and in immediately available funds, without condition set-off or deduction for counterclaim. Any amounts received after such time on any counterclaimdate may, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by in the Borrower hereunder shall be made to discretion of the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case 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 designated to the Borrower by the Administrative Agent, except that payments pursuant to Sections 2.12, 2.13, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute in like funds any such payments received by the Administrative agent for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in the currency in which the applicable interest or fee shall continue to accruepayment obligation is due.
(b) If at any payment to be made time insufficient funds are received by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such Lender’s share funds shall be applied (i) first, towards payment of such Borrowinginterest and fees then due hereunder, ratably among the Administrative Agent may assume that such Lender has made such share available on such date parties entitled thereto in accordance with Section 2.02 the amounts of interest and mayfees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in reliance upon accordance with the amounts of principal then due to such assumptionparties.
(c) If any Lender shall, make available by exercising any right of counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans hereunder resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans under such Facility and accrued interest thereon than the proportion received by any other Lender within such Facility, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders within such Facility to the extent necessary so that the benefit of all such payments made under such Facility shall be shared by the Lenders within such Facility ratably in accordance with the aggregate amount of principal of and accrued interest on their respective 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 any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or Participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a corresponding amount. In participation pursuant to the foregoing arrangements may exercise against the Borrower rights of counterclaim with respect to such event, participation as fully as if such Lender were a Lender has not in fact made its share direct creditor of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agentparticipation.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment from the Borrower is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 (or, in the case of EURIBOR Loans, such other customary overnight rate determined as shall be specified 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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 interestAgent).
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of If any Lender to make any Loan, to fund any such participation or shall fail to make any payment under required to be made by it pursuant to Section 10.04(c2.04(b) on or 2.14(d), then the Administrative Agent may, in its discretion (notwithstanding any date required hereunder shall not relieve contrary provision hereof), apply 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, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment amounts thereafter received by the Administrative Agent under this Agreement or any for the account of the other Loan Documents is insufficient such Lender to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with satisfy such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of obligations under such Sections until all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lenderunsatisfied obligations are fully paid.
Appears in 3 contracts
Samples: 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.), 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.), 364 Day Revolving Credit Agreement (GE Healthcare Holding LLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided hereinfor under this Agreement) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 1:00 p.m. New York City timemay, in each case, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative CurrencyAdministrative Agent’s reasonable discretion, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except as otherwise provided herein, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Lead Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, that the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by Borrowers or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made Borrowers or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrowers failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuerin Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the applicable Overnight Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Overnight Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall promptly pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A written notice (including documentation reasonably supporting such request) of the Administrative Agent to any Lender or the Borrower Borrowers with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(h) Amounts to be applied to the prepayment of Loans in connection with any mandatory prepayments by the Borrowers of the Term Loans pursuant to Section 2.05(b) shall be applied, as applicable, on a pro rata basis (unless Lenders holding Term Loans incurred after the Closing Date elect a less than pro rata basis) to the then outstanding Term Loans in direct order of maturity being prepaid on a pro rata basis (except with respect to a Term Lender which has declined or otherwise agreed not to accept its Pro Rata Share of any such mandatory prepayment) irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.05(b)(viii), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to reduce outstanding Base Rate Loans. Any amounts remaining after each such application shall be applied to prepay Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 3.05.
Appears in 3 contracts
Samples: Credit Agreement (Redwire Corp), Credit Agreement (Redwire Corp), Credit Agreement (Redwire Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time (or, in the case of Obligations denominated in an Alternative CurrencySection 2.06(a)(iii), in each case 3:00 p.m.) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City timeor, in the case of payments in Dollars or (iiSection 2.06(a)(iii), 3:00 p.m.) after 12:00 noon New York City time may, in the case discretion of payments in an Alternative Currencythe Administrative Agent, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and or such extension of time shall be reflected in computing interest or feesLender, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Overnight Rate; and
(ii) if any Lender failed to but make such payment with respect to any Borrowing, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.13(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(g) 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(c) or 9.07 (or if the Borrower shall have paid any amount or posted any cash collateral in respect of such Lender’s Pro Rata Share of L/C Obligations pursuant to Section 2.17(c)(ii)), then notwithstanding any contrary provision hereof, with respect to any amounts thereafter received by the Administrative Agent for the account of such Lender, the Administrative Agent (i) shall apply such amounts (A) first, for the benefit of the Administrative Agent or the L/C Issuer to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and (B) second, unless an Event of Default has occurred and is continuing, to reimburse the Borrower for any cash collateral posted by the Borrower until the Borrower is fully reimbursed, and (ii) thereafter, may, in its sole discretion, hold any such remaining amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; provided any amounts held pursuant to clause (ii) hereof shall be released to such Lender upon the earlier of (x) the date on which any of the actions described in Section 8.02(a), 8.02(b) or 8.02(c) or the proviso to Section 8.02 shall have been taken or occurred and (y) the Initial Revolver Maturity Date.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers hereunder shall be made to the applicable Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office of such Administrative Agent in Dollars (or, in the case of principal payments regarding Canadian Loans or Canadian Letters of or interest on any Obligations denominated inCredit, and to be paid inin Canadian Dollars, an Alternative Currencyand, such Alternative Currency) and in Same Day Funds all cases, in immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Such Administrative Agent will promptly distribute to each applicable Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) Agents after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the definition of “Interest Period,” if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have If at any time insufficient funds are received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make by and available to the Administrative Agents to pay fully all amounts of principal, L/C Borrowings, Acceptance Usage, interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agents and each Lender that are subject to reimbursement by the Borrowers pursuant to the terms of the Loan Documents, (ii) second, toward repayment 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 (iii) third, toward repayment of principal, L/C Borrowings and Acceptance Usage then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal, L/C Borrowings and Acceptance Usage then due to such parties.
(d) Unless a Borrower or any Lender has notified the applicable Administrative Agent prior to the date any payment is required to be made by it to such Administrative Agent hereunder, that such Borrower or Lender’s share of , as the case may be, will not make such Borrowingpayment, the such Administrative Agent may assume that such Lender Borrower or Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of to such Administrative Agent in immediately available funds, then:
(i) if the applicable Borrowing available Borrower failed to the Administrative Agentmake such payment, then the each applicable Lender and the Borrower severally agree to pay to the Administrative Agent shall forthwith on demand repay to such corresponding amount Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by such Administrative Agent to such Lender to the date such amount is repaid to such Administrative Agent in immediately available funds, at the Federal Funds Rate in the case of the Domestic Administrative Agent and the Interbank Reference Rate in the case of the Canadian Administrative Agent, from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to such Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by such Administrative Agent to the Borrower to but excluding the date of payment such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Administrative Agent, at (A) Federal Funds Rate in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Domestic Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by and the Administrative Agent in connection with the foregoing, and (B) Interbank Reference Rate in the case of a payment the Canadian Administrative Agent, from time to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such periodtime in effect. If such Lender pays its share of such amount to the applicable Borrowing to the Administrative Agent, then the such amount so paid shall constitute such Lender’s Loan Committed Loan, included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount forthwith upon the applicable Administrative Agent’s demand therefor, such Administrative Agent may make a demand therefor upon the applicable Borrower, and such Borrower shall pay such amount to such Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the applicable Administrative Agent or Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the any Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, absent demonstrable manifest error.
(de) If any Lender makes available to the an 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 Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the applicable Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(ef) The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans, to accept Acceptances and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation participation, to accept any such Acceptance or to make any such payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to accept Acceptances, to purchase its participation or to make its payment payments under Section 10.04(c).
(fg) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gh) Except On each date when the payment of any principal, interest or fees are due under any Loan Document, the applicable Borrower agrees to maintain on deposit in an ordinary checking account maintained by such Borrower with the applicable Administrative Agent (as otherwise provided hereinsuch account shall be designated by such Borrower in a written notice to such Administrative Agent from time to time, whenever the “Borrower Account”) an amount sufficient to pay such principal, interest or fees in full. Each Borrower hereby authorizes the applicable Administrative Agent (i) to deduct automatically all principal, interest or fees when due under any Loan Document from its Borrower Account, and (ii) if and to the extent any payment received by under any Loan Document is not made when due, to deduct automatically any such amount from any or all of the accounts of such Borrower maintained with such Administrative Agent. The Administrative Agent under this Agreement or any of the other Loan Documents is insufficient agrees to pay in full all amounts due and payable provide timely notice to the Administrative Agent and the Lenders under or in respect applicable Borrower of any automatic deduction made pursuant to this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law2.13(h), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Corinthian Colleges Inc), Credit Agreement (Corinthian Colleges Inc), Credit Agreement (Corinthian Colleges Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Committed Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Committed Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Committed Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Committed Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Intercept Inc), Credit Agreement (New York Times Co), Credit Agreement (New York Times Co)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. 3.00 p.m., New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currencytime, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. p.m., New York City time, may (in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. All payments under each Loan Document shall be made in Dollars.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative AgentAgent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then the applicable Lender and the Borrower severally agree agrees to pay to the Administrative Agent forthwith on demand the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by the Administrative Agent to such Lender to the Borrower to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus it being understood that nothing herein shall be deemed to relieve any administrative, processing Lender from its obligation to fulfill its Term Commitment or similar fees customarily charged by to prejudice any rights which the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against any Lender as a result of any default by such Lender that shall have hereunder; and
(ii) if any Lender failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent payment, such Lender shall have received notice from the Borrower prior to the time at which any payment is due forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the account of period from the Lenders or an L/C Issuer hereunder that the Borrower will not make date such payment, amount was made available by the Administrative Agent may assume that to the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 recovered by the Administrative Agent, Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Term Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.10(c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Company to any Lender, the Administrative Agent, the Issuer or any other Person hereunder shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Company hereunder to be made directly to the Issuer shall be made to the Issuer in accordance with its payment instructions in Dollars and in immediately available funds not later than the times and on the dates specified herein. Except as otherwise expressly provided herein and except with respect to such payments to be made directly to the Issuer, all payments by the Company hereunder shall be made to the Administrative Agent, for the account of the respective Lenders or the Issuer to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency1:00 p.m., in each case Dallas time, on the date specified herein. The Administrative Agent will promptly distribute to the Issuer its applicable share as provided herein, or to each Lender its Pro Rata Share (or other applicable share as provided herein) ), of such payment in like funds as received by wire transfer to the Issuer in accordance with its payment instructions or to such Lender’s applicable Lender at its Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City 1:00 p.m., Dallas time, or by the Issuer after the time specified herein or in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currencyany Issuer Document, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower Company shall come due on a day other than a Business Day, or any other date specified hereunder would otherwise occur on a day other than a Business Day, then except as otherwise provided herein, such payment shall be made made, or other date shall occur, on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations Participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Credits 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 10.04(c) its Participation on any date required hereunder the Closing Date with its Credit-Linked Deposit 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, purchase its participation or to make its payment under Section 10.04(c)Participation.
(fd) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan the Credit-Linked Deposit in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan the Credit-Linked Deposit in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Letter of Credit and Term Loan Agreement (Waste Management Inc), Letter of Credit and Term Loan Agreement (Waste Management Inc), Letter of Credit and Term Loan Agreement (Waste Management Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made Each payment by the Borrower hereunder (whether of principal, interest, fees or any other amount) shall be made prior to 12:00 noon, New York City time, on the date when due, in Dollars in immediately available funds, without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which Any amounts received after such payment is owed, at the applicable Administrative Agent’s Office in Dollars (ortime on any date may, in the case discretion of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on or, with respect to Revolving Loans, the due date (i) after 3:00 p.m. New York City timeRevolving Loan Lender, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All payments shall be made to the account of the Administrative Agent (account number 400949687) at XX Xxxxxx Xxxxx Bank (ABA number 0210000210) or such other account as may hereafter be designated by the Administrative Agent in writing, except that payments in respect of the Revolving Loans and the Letters of Credit (including any applicable interest fees relating thereto) shall be made to the Revolving Loan Lender or fee the Issuing Bank, as applicable. The Administrative Agent shall continue distribute any such payments received by it for the account of any other Person to accruethe appropriate recipient promptly upon receipt thereof, in like funds as received.
(b) If any payment to be made by the Borrower shall come under any Loan Document becomes due and payable on a day other than a Business Day, the date for payment shall be made on extended to the next following succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have If at any time insufficient funds are received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such Lender’s share funds shall be applied (i) first, towards payment of such Borrowinginterest and fees then due hereunder, ratably among the Administrative Agent may assume that such Lender has made such share available on such date parties entitled thereto in accordance with Section 2.02 the amounts of interest and mayfees then due to such parties, in reliance upon such assumptionand (ii) second, make available to towards payment of principal then due hereunder, ratably among the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent parties entitled thereto in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case amounts of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, principal then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable errorparties.
(d) If any The Revolving Loan Lender makes available to agrees that it will promptly notify the Administrative Agent funds for of any Loan defaults in the payment of principal, interest and fees required to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available paid to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments Revolving Loan Lender for its own account pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c)this Agreement.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Loan Agreement (Macquarie Infrastructure CO LLC), Loan Agreement (Macquarie Infrastructure CO LLC), Loan Agreement (Macquarie Infrastructure CO Trust)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Eurodollar Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to (i) from the date such amount was made available through the first Business Day thereafter, the Federal Funds Rate from time to time in effect and (ii) thereafter, the rate applicable to the applicable Loan made to the Borrower. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share pro rata share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to payments in an Available Currency (and payments in respect of Alternative Letters of Credit), all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein and with respect to payments in respect of Alternative Letters of Credit, all payments by the Borrowers hereunder in an Available Currency (other than Dollars) shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in such Available Currency and in Same Day Funds not later than 2:00 p.m. (London time) on the dates specified herein. If, for any reason, the Borrowers are prohibited by any Law from making any required payment hereunder in an Available Currency (other than Dollars), except in respect of Alternative Letters of Credit, the Borrowers shall make such payment in Dollars in the Dollar Equivalent, as calculated by the Company, of the Available Currency payment amount. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided hereinfor under this Agreement) of such payment in like funds as received by wire transfer (or as otherwise agreed between the Administrative Agent and such Lender) to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time 2:00 pm (London time) in the case of payments in an Alternative CurrencyAvailable Currency (other than Dollars), shall shall, in each case case, be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrueaccrue to, but excluding, such next succeeding Business Day. Payments owing to an Alternative L/C Issuer in respect of reimbursement obligations under an Alternative Letter of Credit shall, to the extent not paid with the proceeds of a Revolving Credit Borrowing, be made directly by the relevant Borrower to such Alternative L/C Issuer.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall not be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless a Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, that the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by Borrowers or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made Borrowers or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if a Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuerin Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the applicable Overnight Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to a Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Overnight Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower Borrowers with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV or in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share or other applicable share provided for under this Agreement of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Extension Amendment (Liberty Latin America Ltd.), Additional Facility Joinder Agreement (Liberty Latin America Ltd.), Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Payments Generally. (a) All payments to be made by the Borrower under the Loan Documents shall be made without condition or deduction for any defense, set-off, recoupment or counterclaim. Except as otherwise expressly provided herein, including pursuant to Section 3.01in any Loan Document, all payments to be made by the Borrower shall be made without condition or deduction for under any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder Loan Document shall be made to the Administrative Agent, Agent for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated inOffice, and to shall be paid in, an Alternative Currency, such Alternative Currency) made in dollars and in Same Day Funds not immediately available funds, no later than 3:00 2:00 p.m. (New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case time) on the date specified hereinin such Loan Document. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Officereceived. All payments Any payment received by the Administrative Agent on the due date later than 2:00 p.m. (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed to have been received on the next succeeding following Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the provisions set forth in the definition of “Interest Period” herein, whenever any payment to be made by the Borrower shall come is due on a day other than a Business Day, such payment shall be made on the next following Business Day, and such extension of time shall in such case be reflected included in computing the computation of interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the customary rate set by the Administrative Agent for the correction of payment errors among banks for three (3) Business Days and thereafter at the Base Rate. If such Lender pays such amount to the Administrative Agent, at then such amount (other than the greater of interest thereon) shall constitute such Lender’s Revolving Loan included in the Federal Funds Rate and a rate determined by applicable Credit Extension. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the applicable rate for Base Rate Loans to the applicable Credit Extension. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitments or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Revolving Loan to be made by such Lender as provided in the foregoing provisions of this Article II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension extension of Revolving Loans set forth in Article IV 4 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Revolving Loans 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 10.04(c) Revolving Loan 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, purchase its participation or to make its payment under Section 10.04(c)Revolving Loans.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Revolving Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any the Revolving Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (KKR & Co. Inc.), Credit Agreement (KKR & Co. Inc.), Credit Agreement (Employers Holdings, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein 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, Lender at the applicable Administrative AgentLender’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share 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 Lender at the Lender’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Lender on the dates specified herein. Without limiting the generality of the foregoing, the Lender may require that any payments due under this Agreement be made in the United States. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in like funds as received by wire transfer to such Lender’s applicable Lending OfficeDollars in the Dollar Equivalent of the Alternative Currency payment amount. All payments received by the Administrative Agent on the due date Lender (i) after 3:00 p.m. New York City time2:00 p.m., in the case of payments in Dollars Dollars, or (ii) after 12:00 noon New York City time the Applicable Time specified by the Lender, in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b. Subject to Section 2.07(a) If and as otherwise specifically provided for in this Agreement, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (AstroNova, Inc.), Credit Agreement (AstroNova, Inc.), Credit Agreement (AstroNova, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the definition of "Interest Period", if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have If at any time insufficient funds are received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such Lender’s share of such Borrowingfunds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent may assume that such Lender has made such share available on such date and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with Section 2.02 the amounts of interest and mayfees then due to such parties, and (iii) third, toward repayment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in reliance upon accordance with the amounts of principal and L/C Borrowings then due to such assumption, make available to parties.
(d) Unless the Borrower a corresponding amount. In such event, if a or any Lender has not in fact made its share of the applicable Borrowing available to notified the Administrative Agent, then prior to the applicable Lender and the Borrower severally agree date any payment is required to pay be made by it to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereonhereunder, for each day from and including the date such amount is made available to that the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender's Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent's demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, absent demonstrable manifest error.
(de) 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 Credit Extension set forth in Article IV V 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.
(ef) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fg) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Petro Financial Corp), Credit Agreement (Petro Stopping Centers L P), Credit Agreement (Petro Stopping Centers Holdings Lp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 immediately available funds not later than 2:00 p.m. (or, in the case of principal of or interest on any Obligations denominated inSection 2.05(a)(ii), and to be paid in, an Alternative Currency, such Alternative Currency3:00 p.m.) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City timeor, in the case of payments in Dollars or (iiSection 2.05(a)(ii), 3:00 p.m.) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) . If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(b) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment with respect to any Committed Borrowing, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Committed Loan included in the applicable Committed Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Committed Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Committed Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Committed Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Committed Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Lender Processing Services, Inc.), Credit Agreement (Lender Processing Services, Inc.), Credit Agreement (Lender Processing Services, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the each Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the each 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. 12:00 noon, New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currencytime, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. 12:00 noon, New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the definition of “Interest Period,” if any payment to be made by the a Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) If at any time, if including following an exercise of remedies, insufficient funds, including proceeds of Springing Lien Collateral, are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such extension would cause payment funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest on or 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 (iii) third, toward repayment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of Eurocurrency Rate Loans principal and L/C Borrowings then due to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Dayparties.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Fixed Period Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Committed Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the requesting Borrower a corresponding amount. In If any Lender failed to make such eventpayment, if a such Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to shall forthwith on demand pay to the Administrative Agent forthwith on demand such corresponding the amount thereof in immediately available funds funds, together with interest thereon, thereon for each day the period from and including the date such amount was made available by the Administrative Agent to a Borrower to the date such amount is made available recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Borrower to but excluding the date greater of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate from time to time in effect and (B) a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the requesting Borrower, and such Borrower shall pay (Bsubject to its recoupment rights from and remedies against such defaulting Lender of any breakage costs paid by such Borrower when repaying such amount) in such amount to the case Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loansthe applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or a Borrower may have against any Lender as a result of any default by such Lender hereunder. If the a Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the such Borrower the amount of such interest paid by the such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the a Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer hereunder that the such Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersIssuer, as the case may be, the amount due. In such event, if the a Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C IssuersIssuer, 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 the L/C Issuer, 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 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 a Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, absent demonstrable manifest error.
(de) 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 Credit Extension 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.
(ef) The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c10.05(b) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c10.05(b) 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 Committed Loan, to purchase its participation or to make its payment under Section 10.04(c10.05(b).
(fg) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Enbridge Energy Partners Lp), Credit Agreement (Midcoast Energy Partners, L.P.), Credit Agreement (Midcoast Energy Partners, L.P.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the any Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the any 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 (orand in immediately available funds not later than 2:30 p.m. on the date specified herein. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the amount of such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:30 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless any Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder (or, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment Borrowing of Base Rate Loans, prior to be made by 12:30 p.m. on the date of such Borrowing), that such Borrower or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent, any Lender or any Borrower or Applicant may have against any other Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any Borrower with respect to any amount owing under this clause Subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 any Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make LoansLoans and to honor drawings under, and to fund participations in in, Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such drawing or participation or to make any payment under Section 10.04(c) on any date when required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such dateso, and except for Limited Fronting Lenders with respect to Several Letters of Credit they have issued on behalf of Affected Lenders or Non-NAIC Approved Banks, no Lender shall be responsible for the failure of any other Lender to so make its Loan, honor a drawing or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan or other funding obligation in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Metlife Inc), Five Year Credit Agreement (Metlife Inc), Five Year Credit Agreement (Metlife Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to payments in Euro, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) for payment and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder in Euro 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 Euro and in Same Day Funds not later than the Applicable Time on the dates specified herein. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in Euro, the Borrowers shall make such payment in Dollars in the Dollar Amount of the Euro payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. (New York, New York City time), in the case of payments in Dollars Dollars, or (ii) after 12:00 noon New York City time the Applicable Time in the case of payments in an Alternative CurrencyEuro, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Parent Borrower has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent hereunder for the account of the Lenders any Lender or an L/C Issuer hereunder hereunder, that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon thereon, make available a corresponding amount to such assumption, distribute to the Appropriate Lenders Lender or the applicable L/C Issuers, as Issuer. If and to the case may be, the amount due. In extent that such event, if the Borrower has payment was not in fact made such paymentto the Administrative Agent in Same Day Funds, then each of the Appropriate Lenders such Lender or the applicable L/C Issuers, as the case may be, severally agrees to Issuer shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C IssuerIssuer in Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined was made available by the Administrative Agent to such Lender or L/C Issuer to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationSame Day Funds at the applicable Overnight Rate from time to time in effect. A notice of the Administrative Agent to any Lender or the Borrower Borrowers with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01required by applicable Law, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 4:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 4:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day in the Administrative Agent’s sole discretion and any applicable interest or fee shall continue to accrueaccrue to the extent applicable.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any Default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Quintiles Transnational Holdings Inc.), Credit Agreement (Quintiles Transnational Holdings Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Eurodollar Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to (i) from the date such amount was made available through the first Business Day thereafter, the Federal Funds Rate from time to time in effect and (ii) thereafter, the rate applicable to the applicable Loan made to the Borrower. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Credit Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders to such due and payable amounts in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may shall (i) apply such funds to amounts then due and payable in the fullest extent permitted by mandatory provisions order of applicable Law)priority set forth in Section 8.04 and (ii) thereafter, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share pro rata share of the sum of (aA) the Outstanding Amount of all Loans outstanding at such time and (bB) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 and in Dollars immediately available funds not later than 1:00 p.m., New York City time (or, in the case of principal of or interest on any Obligations denominated in, and payments to be paid inmade by the Maltese Borrower, an Alternative Currency2:00 p.m., such Alternative CurrencyLondon time) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified hereinherein or such later time as the Administrative Agent may otherwise determine in its reasonable discretion. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All Unless otherwise agreed by the Administrative Agent, all payments received by the Administrative Agent on the due date (i) after 3:00 p.m. 1:00 p.m., New York City timetime (or, in the case of payments in Dollars or (iito be made by the Maltese Borrower, 2:00 p.m., London time) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. All payments by the Borrowers and the other Loan Parties under each Loan Document shall be made in U.S. Dollars.
(b) If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless any Lender or any Borrower has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made or such share available on such date in accordance with Section 2.02 and mayBorrower, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in as the case of a payment to be made by such Lendermay be, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that such Lender or such Borrower, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the Appropriate Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if any Borrower failed to make such payment, each of the applicable Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, Issuer in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender or L/C Issuer to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to any Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the applicable Borrower, and the applicable Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the interest rate applicable to such Loan; provided that nothing herein shall excuse any Lender from its obligation to fulfill its Commitment or prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender Lender, L/C Issuer or the any Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 applicable Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit Credit, Protective Advances and Swing Line Loans and the obligations of the Lenders to make payments pursuant to Section 10.04(c) 9.07 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 10.04(c) 9.07 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase and fund its participation or to make its payment under Section 10.04(c)9.07.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. (New York, New York City time time) on the dates specified herein; provided that all payments by the Borrower hereunder in case respect of principal of and interest on Revolving Credit Loans denominated in Euros shall be made to the Administrative Agent, for the account of the Obligations denominated respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Euros and in Same Day Funds not later than 2:00 p.m. (London time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in Euros that is otherwise required pursuant hereto to be made in Euros, the Borrower shall make such payment in Dollars or 12:00 noon New York City time in the case Dollar Amount of Obligations denominated in an Alternative Currency, in each case on the date specified hereinEuro payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. (New York, New York City time, ) in the case of payments in Dollars or (ii) after 12:00 noon New York City time 2:00 p.m. (London time) in the case of payments in an Alternative CurrencyEuros, shall shall, in each case case, be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency LIBO Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Lead Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, that the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by Borrowers or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made Borrowers or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuerin Same Day Funds, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.then:
Appears in 2 contracts
Samples: Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.)
Payments Generally. (a) Except as 3.11.1. Unless otherwise provided hereinspecified, including pursuant to Section 3.01, all payments Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or of amounts payable under Section 3.6, 3.7 or 3.8 or otherwise) prior to 10:00 a.m., New York City time, on the Borrower shall be made date when due, in immediately available funds, without condition or deduction for any counterclaim, defense, recoupment recoupment, set-off or setoffcounterclaim. Except as otherwise expressly provided hereinAny amounts received after such time on any date may, all payments by in the Borrower hereunder shall be made to the discretion of Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case 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 Administrative Agent to the applicable account designated to Borrower by Administrative Agent, except that payments pursuant to Sections 3.6, 3.7, 3.8 and 12.10 shall be made directly to the Persons entitled thereto. Administrative Agent shall distribute any applicable interest or fee shall continue such payments received by it for the account of any other Person to accrue.
(b) the appropriate recipient promptly following receipt thereof. If any payment to hereunder shall be made by the Borrower shall come due on a day other than that is not a Business Day, the date for payment shall be made on extended to the next following succeeding Business DayDay (or, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the event that the next succeeding Business Day falls in the succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
), and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder of (ia) principal or interest in respect of any Term Loan or (b) any other amount due hereunder or under any other Credit Document shall be made in Dollars. Any payment required to be made by Administrative Agent hereunder shall be deemed to have been made by the time required if 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 Administrative Agent to make such payment. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 (i) the Federal Funds Overnight LIBO Rate and (ii) a rate reasonably 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 (c) shall be conclusive, absent demonstrable error.
(d) If any Lender makes available shall fail to the Administrative Agent funds for make any Loan payment required to be made by it pursuant to the immediately preceding sentence, then Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by Administrative Agent for the account of 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with satisfy such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of obligations under such sentence until all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lenderunsatisfied obligations are fully paid.
Appears in 2 contracts
Samples: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy Partners LP)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the any Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the any 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 (orand in immediately available funds not later than 2:30 p.m. on the date specified herein. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the amount of the Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:30 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless any Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder (or, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment Borrowing of Base Rate Loans, prior to be made by 12:30 p.m. on the date of such Borrowing), that such Borrower or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent, any Lender or any Borrower or Applicant may have against any other Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any Borrower with respect to any amount owing under this clause Subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 any Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make LoansLoans and to honor drawings under, and to fund participations in in, Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such drawing or participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and except for Limited Fronting Lenders with respect to Several Letters of Credit they have issued on behalf of Affected Lenders on Non-NAIC Approved Banks, no Lender shall be responsible for the failure of any other Lender to so make its Loan, honor a drawing or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan or other funding obligation in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Metlife Inc), Five Year Credit Agreement (Metlife Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments and prepayments to be made by the Borrower shall be made without condition in respect of principal, interest, fees, indemnity, expenses or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by other amounts due from the Borrower hereunder or under any Loan Document in Dollars shall be payable at 12:00 o'clock Noon, Pittsburgh time, on the day when due without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue, without setoff, counterclaim, withholding or other deduction of any kind or nature, except for payments to a Lender subject to a withholding deduction under Section 2.15(c) hereof. Except for payments under Sections 2.03(q), 2.13 and 9.06 hereof, such payments shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Funding Agent at the applicable Administrative Agent’s its Office in Dollars (or, in the case of principal of or interest on any Obligations denominated infunds immediately available at such Office, and payments under Sections 2.13 and 9.06 hereof shall be made to be paid in, an Alternative Currency, the applicable Lender at such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City domestic account as it shall specify to the Borrower from time to time in case of the Obligations denominated in Dollars funds immediately available at such account. Any payment or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments prepayment received by the Administrative Funding Agent on the due date (i) or such Lender after 3:00 p.m. New York City 12:00 o'clock Noon, Pittsburgh time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, on any day shall in each case be deemed to have been received on the next succeeding Business Day and any applicable interest or fee Day. The Funding Agent shall continue distribute to accrue.
(b) If any payment to be made the Lenders all such payments received by it from the Borrower as promptly as practicable after receipt by the Borrower shall come due on a day other than a Business Day, Funding Agent. If and to the extent that the Funding Agent has not forwarded to any Lender such Lender's share of any such payment shall be made on the next following same Business Day, and such extension of time shall be reflected in computing interest or fees, Day as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
is received (ior deemed received) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the Funding Agent shall pay to such Lender interest rate applicable to Base on such amount at the Federal Funds Effective Rate Loansfor each day until such payment is made. If Upon termination of this Agreement and payment in full of all principal, interest, fees, expenses and other amounts due from the Borrower hereunder or under any other Loan Document, each Lender will promptly mark xxx Notes "cancelled" and such Lender shall pay such interest forward them to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit delivery to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative AgentBorrower.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Foster Wheeler Corp), Short Term Revolving Credit Agreement (Foster Wheeler Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly specifically provided herein, all payments by the Borrower hereunder under this Agreement 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest without set-off, counterclaim or deduction of any kind, to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the ratable account of the Lenders entitled thereto or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersAgent, as the case may be, not later than 12:00 Noon (New York time) on the amount due. In such eventdate when due and shall be made in Dollars in immediately available funds at the Administrative Agent’s Office, if it being understood that written or facsimile notice by the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand to make a payment from the amount so distributed to funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the making of such Lender or such L/C Issuer, 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 extent of the Federal Funds Rate and a rate determined by the such funds held in such account. 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 (c) shall be conclusive, absent demonstrable error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan will thereafter cause to be made by such Lender as provided in distributed on 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 Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds same day (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any if payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York time) on such day) like funds relating to the payment of principal or interest or Fees ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:00 p.m. (New York time) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder or performance of any of other obligation hereunder shall be stated to be due on a day that is not a Business Day, the other Loan Documents is insufficient to pay in full all amounts due and payable date thereof shall be extended to the Administrative Agent and the Lenders under or in next succeeding Business Day and, with respect to payments of this Agreement and the other Loan Documents on any dateprincipal, such payment interest shall be distributed by payable during such extension at the Administrative Agent and applied by the Administrative Agent and the Lenders applicable rate in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing effect immediately prior to such Lenderextension.
Appears in 2 contracts
Samples: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency2:00 p.m., in each case Local Time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m., Local Time, shall (i) after 3:00 p.m. New York City time, in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. All payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in the currency of such Loan, and, except as otherwise expressly set forth in any Loan Document, all other payments under each Loan Document shall be made in Dollars.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative AgentAgent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then the applicable Lender and the Borrower severally agree agrees to pay to the Administrative Agent forthwith on demand the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by the Administrative Agent to such Lender to the Borrower to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus it being understood that nothing herein shall be deemed to relieve any administrative, processing Lender from its obligation to fulfill its Commitment or similar fees customarily charged by to prejudice any rights which the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against any Lender as a result of any default by such Lender that shall have hereunder; and
(ii) if any Lender failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent payment, such Lender shall have received notice from the Borrower prior to the time at which any payment is due forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the account of period from the Lenders or an L/C Issuer hereunder that the Borrower will not make date such payment, amount was made available by the Administrative Agent may assume that to the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 recovered by the Administrative Agent, Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender8.04.
Appears in 2 contracts
Samples: Refinancing and Incremental Facility Amendment (Frontier Communications Corp), Credit Agreement (Frontier Communications Corp)
Payments Generally. (a) Except as otherwise provided hereinAll payments of principal of, including pursuant and interest on, the Obligations under this Credit Agreement by any Borrower Party to Section 3.01or for the account of Lenders, all payments to be made by the Borrower or any of them, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoffsetoff by such Borrower Party. Except as otherwise expressly provided herein, all payments by the Borrower Parties hereunder shall be made to the Administrative Agent, for the account of the respective Lenders and Lender Groups to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Without limiting the generality of the foregoing, Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment may require that any payments due under this Credit Agreement be made in like funds as the United States. Funds received by wire transfer to such Lender’s applicable Lending Office. All payments Administrative Agent after 1:00 p.m. shall be treated for all purposes as having been received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding first Business Day next following receipt of such funds and any applicable interest or fee fees shall continue to accrue.. Except as provided in Section 13.11(c) hereof, and except for Swingline Loans repaid to the Swingline Lender before the provisions of Section 2.07(d)
(bi) become applicable, each Lender shall be entitled to receive its applicable share of each payment received by Administrative Agent hereunder for the account of Lenders on the Obligations. Each payment received by Administrative Agent hereunder for the account of a Lender shall be promptly distributed by Administrative Agent to the appropriate Funding Agent. If any payment to be made by the any Borrower Party shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if . Each Funding Agent agrees to use reasonable efforts to apply the amounts received in respect of such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior repayments to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account outstanding Loans of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute members of its Lender Group so as to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make minimize broken funding payments payable pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c)4.05.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (TCW Direct Lending VII LLC), Revolving Credit Agreement (TCW Direct Lending LLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to required by Section 3.01, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the applicable Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The applicable Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currencyp.m., shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the applicable Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing that such Lender will not make available to the such Administrative Agent such Lender’s share of such Borrowing, the such Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the applicable Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the such Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the applicable Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the applicable Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the such Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the applicable Administrative Agent for the same or an overlapping period, the such Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the applicable Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iii) Unless the applicable Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the such Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the such Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the applicable Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, 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 such Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the such 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 (c) shall be conclusive, absent demonstrable manifest error.
(d) If any Lender makes available to the applicable 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 such Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the such Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) 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 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Halyard Health, Inc.), Credit Agreement (Halyard Health, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made directly to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at pursuant to the applicable instructions provided to the Borrower by the Administrative Agent’s Office , in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The In the event the Administrative Agent receives any payment owed to the Lenders, the Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuerin Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the applicable rate of interest. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.11(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension Loan 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans 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 10.04(c) Loan 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, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated toat the direction of Required Lenders shall, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount principal amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Term Loan Credit and Guarantee Agreement (RDA Holding Co.), Unsecured Term Loan Credit and Guarantee Agreement (RDA Holding Co.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency11:00 a.m., in each case Dallas, Texas time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City 11:00 a.m., Dallas, Texas time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the definition of "INTEREST PERIOD," if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless If no Default or Event of Default exists and if no order of application is otherwise specified in the Administrative Agent Loan Documents, payments and prepayments of the Obligations shall have received notice from a Lender prior be applied first to fees, second to accrued interest then due and payable on the Outstanding Amount of Loans and L/C Obligations, and then to the proposed remaining Obligations in the order and manner as Borrower may direct.
(d) If at any time of any Borrowing that such Lender will not make insufficient funds are received by and available to the Administrative Agent such Lender’s share to pay fully the Obligations, or if a Default or Event of such BorrowingDefault exists, any payment or prepayment shall be applied in the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available following order: (i) to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share payment of the applicable Borrowing available to enforcement expenses incurred by the Administrative Agent, then including Attorney Costs; (ii) to the applicable ratable payment of all other fees, expenses, and indemnities for which the Administrative Agent or Lenders have not been paid or reimbursed in accordance with the Loan Documents (as used in this SECTION 2.11(d)(ii), a "RATABLE PAYMENT" for any Lender or the Administrative Agent shall be, on any date of determination, that proportion which the portion of the total fees, expenses, and indemnities owed to such Lender or the Administrative Agent bears to the total aggregate fees and indemnities owed to all Lenders and the Administrative Agent on such date of determination); (iii) to the ratable payment of accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements (as used in this SECTION 2.11(d)(iii), "RATABLE PAYMENT" means, for any Lender (or Lender Affiliate, in the case of Lender Hedging Agreements), on any date of determination, that proportion which the accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements owed to such Lender (or Lender Affiliate, in the case of Lender Hedging Agreements) bears to the total accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements owed to all Lenders (and Affiliates, in the case of Lender Hedging Agreements)); (iv) to the ratable payment of the Outstanding Amount of Loans (as used in this SECTION 2.11(d)(iv), "RATABLE PAYMENT" means for any Lender, on any date of determination, that proportion which the Outstanding Amount of Loans owed to such Lender bears to the Outstanding Amount of Loans owed to all Lenders); (v) to Cash Collateralize the Letters of Credit, and (vi) to the payment of the remaining Obligations, if any, in the order and manner the Required Lenders deem appropriate.
(e) Unless the Borrower severally agree or any Lender has notified the Administrative Agent prior to pay the date any payment is required to be made by it to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereonhereunder, for each day from and including the date such amount is made available to that the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds, at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender's Loan, included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent's demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (ce) shall be conclusive, absent demonstrable manifest error.
(df) 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 ARTICLE II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension Borrowing set forth in Article 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.
(eg) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans 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 10.04(c) Loan 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, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fh) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Markwest Energy Partners L P), Credit Agreement (Markwest Energy Partners L P)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) for payment and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Parent Borrower has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent hereunder for the account of the Lenders any Lender or an L/C Issuer hereunder hereunder, that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon thereon, make available a corresponding amount to such assumption, distribute to the Appropriate Lenders Lender or the applicable L/C Issuers, as Issuer. If and to the case may be, the amount due. In extent that such event, if the Borrower has payment was not in fact made such paymentto the Administrative Agent in immediately available funds, then each of the Appropriate Lenders such Lender or the applicable L/C Issuers, as the case may be, severally agrees to Issuer shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, Issuer in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined was made available by the Administrative Agent to such Lender or L/C Issuer to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationimmediately available funds at the applicable Overnight Rate from time to time in effect. A notice of the Administrative Agent to any Lender or the Borrower Borrowers with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in or the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) applicable Alternate Currency and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time (or, in the case of Obligations denominated in an Alternative CurrencySection 2.06(a)(iii), in each case 3:00 p.m.) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City timeor, in the case of payments in Dollars or (iiSection 2.06(a)(iii), 3:00 p.m.) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and or such extension of time shall be reflected in computing interest or feesLender, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such eventpayment was not in fact made to the Administrative Agent in immediately available funds, if then:
(i) with respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (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 the Borrower (whether or not then owed); or (C) the Administrative agent has for any reason otherwise erroneously made such payment; each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount Rescindable Amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest XXXX:\98106221\28\78831.0005 thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment with respect to any Borrowing, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Xxxxxx does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.13(b) shall be conclusive, absent demonstrable manifest error.
(dc) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender Xxxxxx as provided in the foregoing provisions of this Article II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension Borrowing set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(g) 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(c) or 9.07 (or if the Borrower shall have paid any amount or posted any cash collateral in respect of such Lender’s Pro Rata Share of Swing Line Obligations or L/C Obligations pursuant to Section 2.17(b)(ii)), then notwithstanding any contrary provision hereof, with respect to any amounts thereafter received by the Administrative Agent for the account of such Lender, the Administrative Agent (i) shall apply such amounts (A) first, for the benefit of the Administrative Agent, the Swing Line Lender or the L/C Issuer to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, XXXX:\98106221\28\78831.0005 and (B) second, unless an Event of Default has occurred and is continuing, to reimburse the Borrower for any cash collateral posted by the Borrower until the Borrower is fully reimbursed, and (ii) thereafter, may, in its sole discretion, hold any such remaining amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; provided, that any amounts held pursuant to clause (ii) hereof shall be released to such Lender upon the earlier of (x) the date on which any of the actions described in Section 8.02(a), 8.02(b) or 8.02(c) or the proviso to Section 8.02 shall have been taken or occurred and (y) the Initial Revolver Maturity Date.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and, except with respect to principal of and interest on Loans denominated in Euro, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in Euro 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 Euro and in Same Day Funds not later than 3:00 p.m. London time on the date specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, the Borrowers are prohibited by any Law from making any required payment hereunder in Euro, the Borrowers shall make such payment in Dollars in the Dollar Equivalent of the Euro payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars (or (ii) after 12:00 noon New York City 3:00 p.m. London time in the case of payments in an Alternative Currency, Euro) shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree agrees to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensationOvernight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and (B) the Borrowers agree to pay to the Administrative Agent forthwith upon such demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the case date such amount is made available to the Borrowers to but excluding the date of a payment to be made by the BorrowerAdministrative Agent, at the interest rate applicable to Base Rate Loans. If the Borrower Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower Borrowers the amount of such interest paid by the Borrower Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower Borrowers shall be without prejudice to any claim the Borrower Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLenders, as the case may be, the amount due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C IssuerAppropriate Lender, in immediately available funds Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationOvernight Rate. A notice of the Administrative Agent to any Lender or the Borrower Borrowers with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative AgentAgent in Dollars, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on after the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, specified above shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans or Term SOFR Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless (in the Administrative Agent shall have received notice from a Lender case of payments to be made by Lxxxxxx, prior to the proposed time date of any Borrowing of Eurocurrency Rate Loans or Term SOFR Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 p.m. New York City time on the date of such Borrowing)) the Borrower or any Lender has notified the Administrative Agent that the Borrower or such Lender Lender, as the case may be, will not make available to the Administrative Agent such Lender’s share of such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationSame Day Funds at the Federal Funds Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii) if any Lender failed to make such payment (including, and (B) without limitation, failure to fund participations in the case respect of a payment to be made by the Borrowerany Letter of Credit or Swing Line Loan), the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall forthwith on demand pay such interest to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the same or an overlapping period, period from the date such amount was made available by the Administrative Agent shall promptly remit to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit or Swing Line Loan) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender that shall have failed to make such payment to the Administrative Agenthereunder.
(iiiii) Unless With respect to any payment that the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent makes for the account of the Term Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, as to which the Administrative Agent may assume determines (which determination shall be conclusive absent manifest error) that any of the Borrower has made following applies (such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute referred to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if “Rescindable Amount”):
(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 Appropriate Term Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount Rescindable Amount so distributed to such Lender or such L/C IssuerTerm 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 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 (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such LenderLxxxxx’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Summit Materials, LLC), Credit Agreement (Summit Materials, LLC)
Payments Generally. (a) Except as otherwise provided hereinin clause (b) below, including pursuant to Section 3.01, all payments to be made each payment by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the Borrowers on account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on the Loans or of any Obligations denominated infee, and commission or other amounts payable to the Lenders under this Agreement shall be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds made not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute for payment under this Agreement to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City timePayment Account, in the case of payments Dollars, in Dollars immediately available funds and shall be made without any set-off, counterclaim or (ii) deduction whatsoever. Any payment received after 12:00 noon New York City time in the case of payments in an Alternative Currency, 2:00 p.m. shall in each case be deemed received to have been made on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) for all purposes hereunder. If any payment under this Agreement shall be specified to be made by the Borrower shall come due on upon a day other than which is not a Business Day, payment it shall be made on the next following succeeding day which is a Business Day, Day and such extension of time shall in such case be reflected included in computing any interest or if payable along with such payment. All principal, interest, fees, as costs, expenses and other charges provided for in this Agreement or the case other Loan Documents may be; provided that, if such extension would cause payment be charged directly to the loan account(s) of interest on or principal of Eurocurrency Rate Loans to be made any applicable Borrower maintained by the Administrative Agent in the next succeeding calendar monthmanner set forth in clause (b) below and the Administrative Agent shall notify the applicable Borrower from time to time or upon the request of any such Borrower, of any charge to such payment shall be made on the immediately preceding Business DayBorrower’s loan account for interest, fees, costs, expenses and other charges (other than principal).
(ib) Unless All amounts that shall have been swept into the Administrative Agent Payment Account pursuant to Section 6.3(a) as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day. If, as a result of such application, a credit balance exists in the Administrative Agent Payment Account, the balance shall not accrue interest in favor of the Company. The Company irrevocably waives the right to direct the application of any payments or Collateral proceeds, and agrees that the Administrative Agent shall have received notice from a Lender prior the continuing, exclusive right to apply and reapply the proposed time of any Borrowing that such Lender will not make available to same against the Administrative Agent such Lender’s share of such BorrowingObligations then due and owing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with the terms of this Agreement. Except as otherwise provided in Section 2.02 and may11.3, in reliance upon such assumption, make available all amounts applied to repay the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available Obligations pursuant to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Athis Section 3.5(b) shall be applied in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably manner determined by the Administrative Agent in accordance with banking industry rules on interbank compensationits sole discretion.
(c) Notwithstanding anything to the contrary contained in this Agreement, plus any administrative, processing or similar fees customarily charged unless so directed by the Administrative Borrower, or unless an Event of Default shall have occurred and be continuing, the Administrative Agent in connection with shall not apply any payments which it receives (or any amounts applied to repay the foregoingObligations pursuant to clause (b) above) to any Eurodollar Rate Loans, and except (Bi) on the expiration date of the Interest Period applicable to any such Eurodollar Rate Loans or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to event that there are no outstanding Base Rate Loans. If ; provided that the Administrative Agent will attempt to honor any written request received from the Administrative Borrower to hold such payment until the expiration of the applicable Interest Period, it being understood and such Lender agreed that the Administrative Agent shall pay such interest have no liability for any failure to do so.
(d) To the extent that any Loan Party makes a payment or payments to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account benefit of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that receives any payment or proceeds of Collateral which payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the Borrower has made extent of such payment on or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such date in accordance herewith and may, payment or proceeds had not been received by the Administrative Agent. This Section 3.5(d) shall remain effective notwithstanding any contrary action which may be taken by the Administrative Agent or any Lender in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.or
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 the relevant currency (orit being understood that any repayments or prepayments of Loans made hereunder (and interest, fees and other amounts payable in respect thereof) shall be in the same currency as the currency of such Loans and, unless otherwise specified, other amounts payable hereunder shall be paid in U.S. Dollars), as the case of principal of or interest on any Obligations denominated inmay be, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment following receipt thereof in like funds as received by wire transfer to such LenderXxxxxx’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, may be deemed in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed Administrative Agent’s sole discretion received on the next succeeding Business Day and any applicable interest or fee fees shall continue to accrue.
(b) If accrue thereon. Except as otherwise provided herein, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided provided, however, that, if such extension would cause payment of interest on or principal of Term SOFR Loans, Eurocurrency Rate Loans or RFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day. Notwithstanding anything to the contrary set forth herein, to the extent the Administrative Agent receives a payment or other amount after such payment or other amount is due and payable, the Administrative Agent may, in its sole discretion, pay such payment or other amount to the appropriate Lender or other person of record as of the date such payment is received.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Term SOFR Loans, Eurocurrency Rate Loans or RFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such LenderXxxxxx’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the BorrowerBorrowers, the interest rate applicable to Base Rate Loans. If the Borrower Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower Borrowers the amount of such interest paid by the Borrower Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower Borrowers shall be without prejudice to any claim the Borrower Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer Issuers hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 the L/C Issuer, 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 Borrowers with respect to any amount owing under this clause (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender Xxxxxx as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V 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.
(ed) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c11.04(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 10.04(c11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c11.04(c).
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) The Borrowers hereby authorize each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Xxxxxx, to charge from time to time against any or all of the Borrowers’ accounts with such Lender any amount so due.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender9.03.
Appears in 2 contracts
Samples: Credit Agreement (APi Group Corp), Credit Agreement (APi Group Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the any Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the any 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:30 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:30 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless any Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder (or, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment Borrowing of Base Rate Loans, prior to be made by 12:30 p.m. on the date of such Borrowing), that such Borrower or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent, any Lender or any Borrower or Applicant may have against any other Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any Borrower with respect to any amount owing under this clause Subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 any Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make LoansLoans and to honor drawings under, and to fund participations in in, Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such drawing or participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and except for Limited Fronting Lenders with respect to Several Letters of Credit they have issued on behalf of Affected Lenders on Non-NAIC Approved Banks, no Lender shall be responsible for the failure of any other Lender to so make its Loan, honor a drawing or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan or other funding obligation in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Metlife Inc), Credit Agreement (Metlife Inc)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender's Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent's demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension set forth in Article IV V 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Sierra Health Services Inc), Credit Agreement (American Financial Realty Trust)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m., shall (i) after 3:00 p.m. New York City time, in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensationOvernight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the relevant L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable such L/C IssuersIssuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable such L/C IssuersIssuer, 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 L/C Issuer, in immediately available funds Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationOvernight Rate. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c10.05(b) 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 10.04(c10.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c10.05(b).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Phibro Animal Health Corp), Credit Agreement (Phibro Animal Health Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender's Term Loan included in the greater of Advance. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent's demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the Adjusted LIBOR Rate. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension precedent set forth in Article IV V 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) their respective Term Loans 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 10.04(c) Term Loan 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 Term Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Term Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Term Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Bridge Credit Agreement (American Financial Realty Trust), Bridge Credit Agreement (American Financial Realty Trust)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by or on account of any obligation of the Borrower hereunder shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff, except with respect to Taxes as provided in Section 3.01. Except as otherwise expressly provided herein, all payments by or on account of any obligation of the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Agent at the applicable Administrative Agent’s Office Agent Account in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any Except to the extent otherwise provided herein, the Loans, each payment to be made by or prepayment of principal of the Borrower shall come due on a day other than a Business DayLoans, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause each payment of interest on the Loans, each payment of the Prepayment Amount and each other payment hereunder shall be allocated among the Lenders pro rata in accordance with their Ratable Shares of the Loans. The Administrative Agent agrees to forward to the Lenders such principal, interest and other payments on the same Business Day as such amounts are received, collected or principal of Eurocurrency Rate Loans applied by the Administrative Agent from the Borrower, unless the Administrative Agent receives such amounts after 11:00 a.m., in which case such payments may be forwarded by the Administrative Agent to be made in the Lenders on the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing Loan that such Lender will not make available to the Administrative Agent such Lender’s share Applicable Percentage of such BorrowingLoan, the Administrative Agent may assume that such Lender has made such share Applicable Percentage of such Loan available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share Applicable Percentage of the applicable Borrowing such Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Ai) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, compensation and (Bii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate LoansFloating Rate. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share Applicable Percentage of the applicable Borrowing Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowingborrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such paymentpayment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date in accordance herewith and the Administrative Agent may, in reliance upon such assumption, distribute cause to be distributed to each Lender on such due date an amount equal to the Appropriate Lenders or amount then due such Lender. If and to the applicable L/C Issuers, as the case may be, the amount due. In such event, if extent the Borrower has shall not in fact have so made such paymentpayment in full to the Administrative Agent, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall repay to the Administrative Agent forthwith on demand the such amount so distributed to such Lender or such L/C Issuer, in immediately available funds together 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, thereon at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the date such amount is distributed to such Lender to but excluding the date such Lender or the Borrower repays such amount to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, conclusive absent demonstrable manifest error.
(de) Except as expressly set forth herein, if any payment to be made by or on account of any obligation of the Borrower or the date for the performance of any covenant shall come due on a day other than a Business Day, payment or performance, as applicable, shall be made on the next following Business Day, and, for payments, such extension of time shall be reflected in computing interest.
(f) Nothing herein shall be deemed to obligate a Lender to obtain the funds for its Ratable Share of the Loans in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Ratable Share of the Loans in any particular place or manner.
(g) 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 Credit Extension credit extension 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.
(eh) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Margin Loan Agreement (Gci Liberty, Inc.), Margin Loan Agreement (Liberty Broadband Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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, other than in the case of the Tranche C Term Loans, Dollars (orand, in the case of principal of or interest on any Obligations denominated inthe Tranche C Term Loans, Euro, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, shall be deemed in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed Administrative Agent’s sole discretion received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If . Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided be provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersIssuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C IssuersIssuer, 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 the L/C Issuer, 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 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 subsection (cb) shall be conclusive, absent demonstrable manifest error.
(dc) 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 Credit Extension set forth in Article IV V 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.
(ed) 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 10.04(c11.04(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 10.04(c11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c11.04(c).
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Lender, to charge from time to time against any or all of the Borrower’s accounts with such Lender any amount so due.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender9.03.
Appears in 2 contracts
Samples: Credit Agreement (MacDermid Group Inc.), Credit Agreement (MacDermid Group Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower of principal, interest, fees and other Obligations shall be absolute and unconditional and shall be made without condition or deduction for any counterclaim, defense, recoupment recoupment, setoff or setoffrescission. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the definition of “Interest Period”, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing and the Borrower shall not be obligated to pay such Lender interest on its Loan included in the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(iii) In the event that any Lender fails to make available to the Administrative Agent such Lender’s Pro Rata Share of any Borrowing by the Borrower in accordance with banking industry rules the provisions of Section 2.02 hereof, and the Borrower does not repay to the Administrative Agent such Lender’s Pro Rata Share of the Borrowing within three (3) Business Days after such Borrowing, the Administrative Agent shall have the right to recover such Lender’s Pro Rata Share of the Borrowing directly from such Lender, together with interest thereon from the date of the Borrowing at the rate per annum applicable to such Borrowing. In addition, until the Agent recovers such amount, (x) such Lender shall not be entitled to receive any payments under Sections 2.04, 2.06 or 2.07 hereof, and (y) for purposes of voting on interbank compensationor consenting to other matters with respect to this Agreement or the other Loan Documents, such Lender’s Commitment shall be deemed to be zero and such Lender shall not be considered to be a Lender. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or participation. In the event a Lender defaults in its obligation to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable available to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s its Pro Rata Share of any Borrowing as provided in Section 2.11(c)(iii), the sum of (a) the Outstanding Amount of all Loans outstanding at Borrower may replace such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, Lender in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lenderaccordance with Section 12.15.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower of principal, interest, fees and other Obligations shall be made (i) with respect to the Term B Loans and Swingline Loans, in Dollars, and (ii) with respect to the Revolving Credit Commitments and Letters of Credit, in the applicable Approved Currency in which such Obligations are denominated, without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency2:00 p.m., in each case Local Time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m., Local Time, shall (i) after 3:00 p.m. New York City time, in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Other than as specified herein, all payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in Dollars.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available payment on such date in accordance with Section 2.02 and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share to the Administrative Agent in immediately available funds, then
(i) if the Borrower failed to make such payment, then each of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower Lenders severally agree to pay to the Administrative Agent forthwith on demand the portion of such corresponding amount assumed payment that was made available to such Lenders in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by the Administrative Agent to such Lenders to the date such amount is repaid to the Administrative Agent in immediately available funds at the Overnight Rate plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to generally similarly situated borrowers (but not necessarily all such borrowers) in connection with the foregoing; it being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined amount is recovered by the Administrative Agent in accordance with banking industry rules on interbank compensation(the “Compensation Period”) at the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoingforegoing plus, and to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to generally similarly situated borrowers (Bbut not necessarily all such borrowers) in connection with the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loansforegoing. If the Borrower and When such Lender shall pay such interest makes payment to the Administrative Agent for the same or an overlapping period(together with all accrued interest thereon), the Administrative Agent shall promptly remit to the Borrower then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to its payment under Section 10.04(c) 9.07 are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)9.07.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Loan Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Loan Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Payments Generally. (a) All payments to be made by the Borrower under the Loan Documents shall be made without condition or deduction for any defense, set-off, recoupment or counterclaim. Except as otherwise expressly provided herein, including pursuant to Section 3.01in any Loan Document, all payments to be made by the Borrower shall be made without condition or deduction for under any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder Loan Document shall be made to the Administrative Agent, Agent for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated inOffice, and to shall be paid in, an Alternative Currency, such Alternative Currency) made in dollars and in Same Day Funds not immediately available funds, no later than 3:00 2:00 p.m. (New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case time) on the date specified hereinin such Loan Document. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Officereceived. All payments Any payment received by the Administrative Agent on the due date later than 2:00 p.m. (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed to have been received on the next succeeding following Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the provisions set forth in the definition of “Interest Period” herein, whenever any payment to be made by the Borrower shall come is due on a day other than a Business Day, such payment shall be made on the next following Business Day, and such extension of time shall in such case be reflected included in computing the computation of interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the customary rate set by the Administrative Agent for the correction of payment errors among banks for three (3) Business Days and thereafter at the Base Rate. If such Lender pays such amount to the Administrative Agent, at then such amount (other than the greater of interest thereon) shall constitute such Lender’s Revolving Loan included in the Federal Funds Rate and a rate determined by applicable Credit Extension. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the applicable rate for Base Rate Loans to the applicable Credit Extension. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitments or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Xxxxxx xxxxxxxxx. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Revolving Loan to be made by such Lender as provided in the foregoing provisions of this Article II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension extension of Revolving Loans set forth in Article IV 4 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Revolving Loans 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 10.04(c) Revolving Loan 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, purchase its participation or to make its payment under Section 10.04(c)Revolving Loans.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Revolving Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any the Revolving Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Employers Holdings, Inc.), Credit Agreement (KKR & Co. Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01required by applicable Law, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 4:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day in the Administrative Agent’s sole discretion and any applicable interest or fee shall continue to accrueaccrue to the extent applicable.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any Default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Dunkin' Brands Group, Inc.), Credit Agreement (Dunkin' Brands Group, Inc.)
Payments Generally. (a1) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower hereunder shall be made in Dollars without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) for payment and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency2:00 p.m., in each case on the date specified herein. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All Any payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currencyunder this Agreement that are made later than 2:00 p.m., shall in each case be deemed received to have been made on the next succeeding Business Day (but the Administrative Agent may extend such deadline for purposes of computing interest and any applicable interest fees (but not beyond the end of such day) in its sole discretion whether or fee shall continue to accruenot such payments are in process).
(b2) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and except as otherwise expressly provided herein, such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(3) Unless the Borrower or any Lender has notified the Administrative Agent, if prior to the date, or in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m., on the date of such extension would cause Borrowing, any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at hereunder (A) in the case of a payment to be made by such Lenderthe Borrower, for the greater account of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensationany Lender or an Issuing Bank hereunder or, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the BorrowerLenders, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of any Issuing Bank or the Lenders or an L/C Issuer hereunder Borrower hereunder), that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(a) if the Borrower failed to make such payment, then each of the Appropriate Lenders Lender or the applicable L/C Issuers, as the case may be, severally agrees to Issuing Bank shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C IssuerIssuing Bank in Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender or Issuing Bank to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Overnight Bank Funding Rate from time to but time in effect; and
(b) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Bank Funding Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount, or cause such amount to be paid, to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(3) shall be conclusive, absent demonstrable manifest error.
(dc) 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 Credit Extension set forth in Article IV Section 4.02 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any LoanLoan or fund or purchase any participation, to or fund any such participation or to make any payment under Section 10.04(c) other amount, 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, Loan or to so fund or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.03 (or otherwise expressly set forth herein). If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (GreenSky, Inc.), Credit Agreement (GreenSky, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made Each payment by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the Borrowers on account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on the Loans or of any Obligations denominated infee, and commission or other amounts payable to the Lenders under this Agreement shall be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds made not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute for payment under this Agreement to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City timeAgent’s Payment Account, in the case of payments Dollars, in Dollars immediately available funds and shall be made without any set-off, counterclaim or (ii) deduction whatsoever. Any payment received after 12:00 noon New York City time in the case of payments in an Alternative Currency, 2:00 p.m. shall in each case be deemed received to have been made on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) for all purposes hereunder. If any payment under this Agreement shall be specified to be made by the Borrower shall come due on upon a day other than which is not a Business Day, payment it shall be made on the next following succeeding day which is a Business Day, Day and such extension of time shall in such case be reflected included in computing any interest or if payable along with such payment. At the Administrative Agent’s option, during a Cash Dominion Period, all principal, interest, fees, as costs, expenses and other charges provided for in this Agreement or the case other Loan Documents may be; provided that, if such extension would cause payment be charged directly to the loan account(s) of interest on or principal of Eurocurrency Rate Loans to be made in any applicable Borrower maintained by the next succeeding calendar month, such payment shall be made on the immediately preceding Business DayAdministrative Agent.
(b) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Administrative Borrower, or unless a Default or an Event of Default shall have occurred and be continuing, the Administrative Agent shall not apply any payments which it receives to any Eurodollar Rate Loans, except (i) Unless on the expiration date of the Interest Period applicable to any such Eurodollar Rate Loans or (ii) in the event that there are no outstanding Base Rate Loans; provided that the Administrative Agent will attempt to honor any written request received from the Administrative Borrower to hold such payment until the expiration of the applicable Interest Period, it being understood and agreed that the Administrative Agent shall have received notice from a Lender prior no liability for any failure to do so.
(c) To the proposed time of extent that any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of Loan Party makes a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest payments to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account benefit of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that receives any payment or proceeds of Collateral which payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the Borrower has made extent of such payment on or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such date in accordance herewith and may, payment or proceeds had not been received by the Administrative Agent. This Section 3.5(c) shall remain effective notwithstanding any contrary action which may be taken by the Administrative Agent or any Lender in reliance upon such assumption, distribute to payment or proceeds. This Section 3.5 shall survive the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each payment of the Appropriate Lenders or Obligations and the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 termination of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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 interestAgreement.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mohawk Industries Inc), Loan and Security Agreement (Mohawk Industries Inc)
Payments Generally. (a1) Except as otherwise provided herein, including pursuant All payments with respect to Section 3.01, all payments any Class of Loans to be made by the Borrower hereunder shall be made in the currency in which the Loans thereunder are denominated without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) for payment and in Same Day Funds not later than 3:00 p.m. 2:00 p.m., New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currencytime, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All Any payments received by the Administrative Agent on the due date (i) after 3:00 p.m. under this Agreement that are made later than 2:00 p.m., New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received to have been made on the next succeeding Business Day (but the Administrative Agent may extend such deadline for purposes of computing interest and any applicable interest fees (but not beyond the end of such day) in its sole discretion whether or fee shall continue to accruenot such payments are in process).
(b2) If Except as otherwise expressly provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(3) Unless the Borrower or any Lender has notified the Administrative Agent, if prior to the date, or in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m., New York time, on the date of such extension would cause Borrowing, any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at hereunder (A) in the case of a payment to be made by such Lenderthe Borrower, for the greater account of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensationany Lender or an Issuing Bank hereunder or, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the BorrowerLenders, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of any Issuing Bank or the Lenders or an L/C Issuer hereunder Borrower hereunder), that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(a) if the Borrower failed to make such payment, then each of the Appropriate Lenders Lender or the applicable L/C Issuers, as the case may be, severally agrees to Issuing Bank shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C IssuerIssuing Bank in Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender or Issuing Bank to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Overnight Rate from time to but time in effect; and
(b) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount, or cause such amount to be paid, to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(3) shall be conclusive, absent demonstrable manifest error.
(dc) 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 Credit Extension set forth in Article IV Section 4.02 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to Loan or fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.03 (or otherwise expressly set forth herein). If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: First Lien Credit Agreement (McAfee Corp.), First Lien Credit Agreement (McAfee Corp.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time (or, in the case of Obligations denominated in an Alternative CurrencySection 2.06(a)(iii), in each case 3:00 p.m.) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City timeor, in the case of payments in Dollars or (iiSection 2.06(a)(iii), 3:00 p.m.) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and or such extension of time shall be reflected in computing interest or feesLender, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Overnight Rate; and
(ii) if any Lender failed to but make such payment with respect to any Borrowing, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.13(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(g) 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(c) or 9.07 (or if the Borrower shall have paid any amount or posted any cash collateral in respect of such Lender’s Pro Rata Share of Swing Line Obligations or L/C Obligations pursuant to Section 2.17(b)(ii)), then notwithstanding any contrary provision hereof, with respect to any amounts thereafter received by the Administrative Agent for the account of such Lender, the Administrative Agent (i) shall apply such amounts (A) first, for the benefit of the Administrative Agent, the Swing Line Lender or the L/C Issuer to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and (B) second, unless an Event of Default has occurred and is continuing, to reimburse the Borrower for any cash collateral posted by the Borrower until the Borrower is fully reimbursed, and (ii) thereafter, may, in its sole discretion, hold any such remaining amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; provided, that any amounts held pursuant to clause (ii) hereof shall be released to such Lender upon the earlier of (x) the date on which any of the actions described in Section 8.02(a), 8.02(b) or 8.02(c) or the proviso to Section 8.02 shall have been taken or occurred and (y) the Revolver Maturity Date.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Black Knight, Inc.), Credit and Guaranty Agreement (Black Knight, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by or on account of any obligation of the Borrower hereunder shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff, except with respect to Taxes as provided in Section 3.01. Except as otherwise expressly provided herein, all payments by or on account of any obligation of the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Agent at the applicable Administrative Agent’s Office Agent Account in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except to the extent otherwise provided herein, the Loans, each payment or prepayment of principal of the Loans, each payment of interest on the Loans, each payment of any applicable Prepayment Amount and each other payment to be made by the Borrower shall come due on a day other than a Business Day, payment hereunder shall be made on allocated among the next following Business Day, and such extension Lenders pro rata in accordance with their Ratable Shares of time shall be reflected in computing interest or fees, as the case may be; Loans (provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans the Borrower makes an election pursuant to be made in the next succeeding calendar monthSection 2.11(j), such payment shall be made allocated to the Lenders holding Loans of the Type so prepaid pro rata in accordance with their Ratable Shares of the Loans of such Type). The Administrative Agent agrees to forward to the Lenders such principal, interest and other payments on the immediately preceding same Business Day as such amounts are received, collected or applied by the Administrative Agent from the Borrower, unless the Administrative Agent receives such amounts after 11:00 a.m., in which case such payments may be forwarded by the Administrative Agent to the Lenders on the next Business Day.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing Loan that such Lender will not make available to the Administrative Agent such Lender’s share Applicable Percentage of such BorrowingLoan, the Administrative Agent may assume that such Lender has made such share Applicable Percentage of such Loan available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share Applicable Percentage of the applicable Borrowing such Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Ai) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, compensation and (Bii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate LoansFloating Rate. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share Applicable Percentage of the applicable Borrowing Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowingborrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such paymentpayment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date in accordance herewith and the Administrative Agent may, in reliance upon such assumption, distribute cause to be distributed to each Lender on such due date an amount equal to the Appropriate Lenders or amount then due such Lender. If and to the applicable L/C Issuers, as the case may be, the amount due. In such event, if extent the Borrower has shall not in fact have so made such paymentpayment in full to the Administrative Agent, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall repay to the Administrative Agent forthwith on demand the such amount so distributed to such Lender or such L/C Issuer, in immediately available funds together 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, thereon at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the date such amount is distributed to such Lender to but excluding the date such Lender or the Borrower repays such amount to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, conclusive absent demonstrable manifest error.
(de) Except as expressly set forth herein, if any payment to be made by or on account of any obligation of the Borrower or the date for the performance of any covenant shall come due on a day other than a Business Day, payment or performance, as applicable, shall be made on the next following Business Day, and, for payments, such extension of time shall be reflected in computing interest.
(f) Nothing herein shall be deemed to obligate a Lender to obtain the funds for its Ratable Share of the Loans in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Ratable Share of the Loans in any particular place or manner.
(g) 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 Credit Extension credit extension 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.
(eh) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).
(fi) Nothing herein All payments (including prepayments and any other amounts received hereunder other than payments and amounts received in connection with the exercise of the Agents’ and each Applicable Lenders’ rights after an Event of Default) made by the Borrower to Administrative Agent or any Lender under any Loan Document shall be deemed applied to obligate amounts then due and payable in the following order: (i) to any expenses and indemnities payable by the Borrower to any Agent under any Loan Document, (ii) ratably to any expenses and indemnities payable by the Borrower to any Lender to obtain the funds for under any Loan in Document, (iii) subject to Section 2.11(j), to any particular place or manner or accrued and unpaid interest and fees due under this Agreement, (iv) subject to constitute a representation by Section 2.11(j), to principal payments on the outstanding Initial Loans, Delayed Draw Loans and/or Additional Loans (if any) pro rata and (v) to the extent of any Lender that it has obtained or will obtain excess, to the funds for any payment of all other Obligations under the Loan in any particular place or mannerDocuments.
(gj) Except as otherwise provided hereinNotwithstanding anything herein to the contrary, whenever any payment received by the Administrative Agent under nothing in this Agreement or any other Loan Document shall apply to or restrict (A) the payment of the Commitment Fee, other fee (including any Prepayment Amount) or interest payable with respect to any Initial Loans, Delayed Draw Commitment, Delayed Draw Loans, Additional Loan Documents is insufficient Commitments and/or Additional Loans, as applicable or (B) the reduction or termination of the Delayed Draw Commitments and/or Additional Loan Commitments pursuant to pay Section 2.08 (and payments of Commitment Fees due on the date of any such termination) or the prepayment of any Initial Loans, Delayed Draw Loans and/or Additional Loans (if any), whether in full all amounts due and payable or in part, pursuant to Section 2.04 or Section 2.09(a), in each case, on a non-pro rata basis with respect to any other Type of Loans as the Borrower shall elect; provided that if the Borrower does not make such election prior to or concurrently with delivering a Voluntary Prepayment Notice, if applicable, any such payments will be applied on a pro rata basis to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any dateoutstanding Initial Loans, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may Delayed Draw Loans and/or Additional Loans (to the fullest extent permitted by mandatory provisions of applicable Lawif any), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Margin Loan Agreement (Liberty Broadband Corp), Margin Loan Agreement and Collateral Account Control Agreement (Liberty Broadband Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made Each payment by the Borrower hereunder (whether of principal, interest, fees or any other amount) shall be made prior to 5:00 p.m., New York time, on the date when due, in Dollars in immediately available funds, without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinAny amounts received after such time on any date may, all payments by in the Borrower hereunder shall be made to discretion of the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed to have been received on the next succeeding Business Day and for purposes of calculating interest thereon. All such payments shall be made to the account of the Administrative Agent (account number 0000000 760000) at Dresdner Bank AG, New York Branch) or such other account as may hereafter be designated by the Administrative Agent in writing. The Administrative Agent shall distribute any applicable interest or fee shall continue such payments received by it for the account of any other Person to accruethe appropriate recipient promptly upon receipt thereof, in like funds as received.
(b) If any payment to be made by the Borrower shall come under any Loan Document becomes due and payable on a day other than a Business Day, the date for payment shall be made on extended to the next following succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have If at any time insufficient funds are received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make by and available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand fully all amounts of principal, interest and fees then due hereunder, such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim applied (i) first, towards payment of interest and fees then due hereunder, ratably among the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension set forth in Article IV are not satisfied or waived parties entitled thereto in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) amounts of interest and fees then due to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such dateparties, and no Lender shall be responsible for (ii) second, towards payment of principal then due hereunder, ratably among the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders parties entitled thereto in accordance with such Lender’s Pro Rata Share the amounts of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations principal then owing due to such Lenderparties.
Appears in 2 contracts
Samples: Loan Agreement (Macquarie Infrastructure CO LLC), Loan Agreement (Macquarie Infrastructure CO LLC)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to an Approved Foreign 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 (or, in the case of principal of or interest on any Obligations for Dollar-denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) payments and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder in an Approved Foreign 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 Approved Foreign Currency and in Same Day Funds not later than 2:00 p.m. (London time) (or, if earlier, 9:00 a.m. New York city time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any 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. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on after the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, specified above shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(ba) If Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ib) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationSame Day Funds at the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii) if any Lender failed to make such payment (including, and (B) without limitation, failure to fund participations in the case respect of a payment to be made by the Borrowerany Letter of Credit or Swing Line Loan), the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall forthwith on demand pay such interest to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the same or an overlapping period, period from the date such amount was made available by the Administrative Agent shall promptly remit to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit or Swing Line Loan) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Alight, Inc. /DE), Credit Agreement (Alight, Inc. / Delaware)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time (or, in the case of Obligations denominated in an Alternative CurrencySection 2.06(a)(iii), in each case 3:00 p.m.) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City timeor, in the case of payments in Dollars or (iiSection 2.06(a)(iii), 3:00 p.m.) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and or such extension of time shall be reflected in computing interest or feesLender, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Overnight Rate; and
(ii) if any Lender failed to but make such payment with respect to any Borrowing, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.13(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(g) 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(c) or 9.07 (or if the Borrower shall have paid any amount or posted any cash collateral in respect of such Lender’s Pro Rata Share of Swing Line Obligations or L/C Obligations pursuant to Section 2.17(c)(ii)), then notwithstanding any contrary provision hereof, with respect to any amounts thereafter received by the Administrative Agent for the account of such Lender, the Administrative Agent (i) shall apply such amounts (A) first, for the benefit of the Administrative Agent, the Swing Line Lender or the L/C Issuer to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and (B) second, unless an Event of Default has occurred and is continuing, to reimburse the Borrower for any cash collateral posted by the Borrower until the Borrower is fully reimbursed, and (ii) thereafter, may, in its sole discretion, hold any such remaining amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; provided any amounts held pursuant to clause (ii) hereof shall be released to such Lender upon the earlier of (x) the date on which any of the actions described in Section 8.02(a) or 8.02(b) or the proviso to Section 8.02 shall have been taken or occurred and (y) the Initial Revolver Maturity Date.
Appears in 2 contracts
Samples: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrower Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Lender at the applicable Administrative AgentLender’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share Except as otherwise expressly provided herein) , all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Lender at the Lender’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Lender on the dates specified herein. Without limiting the generality of the foregoing, the Lender may require that any payments due under this Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in like funds as received by wire transfer to such Lender’s applicable Lending OfficeDollars in the Dollar Equivalent of the Alternative Currency payment amount. All payments received by the Administrative Agent on the due date Lender (i) after 3:00 p.m. New York City time2:00 p.m., in the case of payments in Dollars Dollars, or (ii) after 12:00 noon New York City time the Applicable Time specified by the Lender, in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b. Subject to Section 2.07(a) If and as otherwise specifically provided for in this Agreement, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (AstroNova, Inc.), Credit Agreement (AstroNova, Inc.)
Payments Generally. (a) Except as otherwise provided hereinAll payments (including prepayments) on account of principal, including pursuant to Section 3.01interest, all payments to be made fees and any other amounts payable by the Borrower Borrowers to the Bank hereunder shall be made without condition setoff or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder counterclaim and shall be made to the Administrative AgentBank on the date of payment at XX Xxx 000000, for the account of the respective Lenders to which such payment is owedXxxxx, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of Xxxxxxx 00000 or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. before 11:00 a.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currencytime, in each case on in lawful money of the date specified herein. The Administrative Agent will promptly distribute United States of America and in immediately available funds (which payments may be made by the Borrowers' use of electronic transfers); without limiting the foregoing, the Borrowers hereby authorize the Bank to charge any account of the Borrowers for each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) therefor. If any payment to be made by the Borrower shall come hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. Notwithstanding the foregoing, if any payment of principal or interest becomes due on a day on which the banks in New York, New York are required or permitted by law to remain closed, such payment may be made on the next following Business Daysucceeding day on which such banks are open, and such extension of time extensions shall be reflected included in computing interest or fees, as the case may be; provided that, if in connection with such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Daypayment.
(ib) Unless the Administrative Agent All payments shall have received notice from a Lender prior be applied first to the proposed time payment of any Borrowing that such Lender will not make available all fees, expenses and other amounts due to the Administrative Agent such Lender’s share Bank (excluding principal and interest), then to accrued interest, and the balance on account of such Borrowingoutstanding principal; provided, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and mayhowever, in reliance upon such assumptionafter an Event of Default, make available payments will be applied to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share obligations of the applicable Borrowing available Borrowers to the Administrative Agent, then Bank as the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount Bank determines in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agentsole discretion.
(iic) Unless The Borrowers hereby authorize the Administrative Agent shall have received notice from the Borrower prior Bank to the time at which debit demand deposit account number 200027292 or any payment is due to the Administrative Agent for the other account of a Borrower with the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date Bank designated in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, in immediately available funds with interest thereonwriting by a Borrower, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing payments due under this clause (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such Note. The Borrowers further certify that they shall maintain balances sufficient to pay each monthly payment shall be distributed by due to the Administrative Agent and applied by the Administrative Agent Bank under this Agreement and the Lenders Note. In the event that the amount maintained in such account is insufficient for any payment due under this Agreement and the order Note, the Bank may charge any account of priority set forth in Section 8.03. If a Borrower maintained at the Administrative Agent receives funds Bank for application any payment due to the Obligations of Bank under this Agreement and the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such LenderNote.
Appears in 2 contracts
Samples: Term Loan Agreement (ONE Group Hospitality, Inc.), Term Loan Agreement (ONE Group Hospitality, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and or such extension of time shall be reflected in computing interest or feesLender, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s 's Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Refco Information Services, LLC), Credit Agreement (Refco Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the any Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the any 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:30 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:30 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless any Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder (or, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment Borrowing of Base Rate Loans, prior to be made by 12:30 p.m. on the date of such Borrowing), that such Borrower or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Committed Loan or Bid Loan, as the greater of case may be, included in the Federal Funds Rate and a rate determined by applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent, any Lender or any Borrower or Applicant may have against any other Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any Borrower with respect to any amount owing under this clause Subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 any Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans, Committed Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Committed Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Committed Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Metlife Inc), Credit Agreement (Metlife Inc)
Payments Generally. (a) Except as otherwise provided hereinin clause (b) below, including pursuant to Section 3.01, all payments to be made each payment by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the Borrowers on account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on the Loans or of any Obligations denominated infee, and commission or other amounts payable to the Lenders under this Agreement shall be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds made not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute for payment under this Agreement to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City timePayment Account, in the case of payments Dollars, in Dollars immediately available funds and shall be made without any set-off, counterclaim or (ii) deduction whatsoever. Any payment received after 12:00 noon New York City time in the case of payments in an Alternative Currency, 2:00 p.m. shall in each case be deemed received to have been made on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) for all purposes hereunder. If any payment under this Agreement shall be specified to be made by the Borrower shall come due on upon a day other than which is not a Business Day, payment it shall be made on the next following succeeding day which is a Business Day, Day and such extension of time shall in such case be reflected included in computing any interest or if payable along with such payment. All principal, interest, fees, as costs, expenses and other charges provided for in this Agreement or the case other Loan Documents may be; provided that, if such extension would cause payment be charged directly to the loan account(s) of interest on or principal of Eurocurrency Rate Loans to be made any applicable Borrower maintained by the Administrative Agent in the next succeeding calendar monthmanner set forth in clause (b) below and the Administrative Agent shall notify the applicable Borrower from time to time or upon the request of any such Borrower, of any charge to such payment shall be made on the immediately preceding Business DayBorrower’s loan account for interest, fees, costs, expenses and other charges (other than principal).
(ib) Unless All amounts that shall have been swept into the Administrative Agent Payment Account pursuant to Section 6.3(a) as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day. If, as a result of such application, a credit balance exists in the Administrative Agent Payment Account, the balance shall not accrue interest in favor of the Company. The Company irrevocably waives the right to direct the application of any payments or Collateral proceeds, and agrees that the Administrative Agent shall have received notice from a Lender prior the continuing, exclusive right to apply and reapply the proposed time of any Borrowing that such Lender will not make available to same against the Administrative Agent such Lender’s share of such BorrowingObligations then due and owing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with the terms of this Agreement. Except as otherwise provided in Section 2.02 and may11.3, in reliance upon such assumption, make available all amounts applied to repay the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available Obligations pursuant to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Athis Section 3.5(b) shall be applied in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably manner determined by the Administrative Agent in accordance with banking industry rules on interbank compensationits sole discretion.
(c) Notwithstanding anything to the contrary contained in this Agreement, plus any administrative, processing or similar fees customarily charged unless so directed by the Administrative Borrower, or unless an Event of Default shall have occurred and be continuing, the Administrative Agent in connection with shall not apply any payments which it receives (or any amounts applied to repay the foregoingObligations pursuant to clause (b) above) to any Eurodollar Rate Loans, and except (Bi) on the expiration date of the Interest Period applicable to any such Eurodollar Rate Loans or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to event that there are no outstanding Base Rate Loans. If ; provided that the Administrative Agent will attempt to honor any written request received from the Administrative Borrower to hold such payment until the expiration of the applicable Interest Period, it being understood and such Lender agreed that the Administrative Agent shall pay such interest have no liability for any failure to do so.
(d) To the extent that any Loan Party makes a payment or payments to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account benefit of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that receives any payment or proceeds of Collateral which payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the Borrower has made extent of such payment on or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such date in accordance herewith and may, payment or proceeds had not been received by the Administrative Agent. This Section 3.5(d) shall remain effective notwithstanding any contrary action which may be taken by the Administrative Agent or any Lender in reliance upon such assumption, distribute to payment or proceeds. This Section 3.5 shall survive the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each payment of the Appropriate Lenders or Obligations and the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 termination of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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 interestAgreement.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time (or, in the case of Obligations denominated in an Alternative CurrencySection 2.06(a)(iii), in each case 3:00 p.m.) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City timeor, in the case of payments in Dollars or (iiSection 2.06(a)(iii), 3:00 p.m.) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and or such extension of time shall be reflected in computing interest or feesLender, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the Overnight Rate; and
(ii) if any Lender failed to but make such payment with respect to any Borrowing, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.13(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(ed) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(g) 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(c) or 9.07 (or if the Borrower shall have paid any amount or posted any cash collateral in respect of such Lender’s Pro Rata Share of Swing Line Obligations or L/C Obligations pursuant to Section 2.17(b)(ii)), then notwithstanding any contrary provision hereof, with respect to any amounts thereafter received by the Administrative Agent for the account of such Lender, the Administrative Agent (i) shall apply such amounts (A) first, for the benefit of the Administrative Agent, the Swing Line Lender or the L/C Issuer to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and (B) second, unless an Event of Default has occurred and is continuing, to reimburse the Borrower for any cash collateral posted by the Borrower until the Borrower is fully reimbursed, and (ii) thereafter, may, in its sole discretion, hold any such remaining amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; provided any amounts held pursuant to clause (ii) hereof shall be released to such Lender upon the earlier of (x) the date on which any of the actions described in Section 8.02(a), 8.02(b) or 8.02(c) or the proviso to Section 8.02 shall have been taken or occurred and (y) the Revolver Maturity Date.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.), Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency2:00 p.m., in each case Local Time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m., Local Time, shall (i) after 3:00 p.m. New York City time, in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. All payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in Dollars.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally Lender agrees to repay pay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationcompensation plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to similarly situated borrowers in connection with the foregoing; it being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to similarly situated borrowers in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Loan Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Loan Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (KORE Group Holdings, Inc.), Credit Agreement (King Pubco, Inc.)
Payments Generally. (a) Except as otherwise provided hereinAll payments of principal of and interest on the Obligations under this Credit Agreement by any Borrower Party to or for the account of Lenders, including pursuant to Section 3.01or any one of them, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoffsetoff by such Borrower Party. Except as otherwise expressly provided hereinherein (including, without limitation, Section 3.02(b)), all payments by the Borrower Parties 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Without limiting the generality of the foregoing, Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment may require that any payments due under this Credit Agreement be made in like funds as received by wire transfer to such Lender’s applicable Lending Officethe United States. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case may be deemed by Administrative Agent to have been received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) . If any payment to be made by the any Borrower Party shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; . Each Lender shall be entitled to receive its Applicable Percentage (or other applicable share as provided that, if herein) of each payment received by Administrative Agent hereunder for the account of Lenders on the Obligations. Each payment received by Administrative Agent hereunder for the account of a Lender shall be promptly distributed by Administrative Agent to such extension would cause Lender. If any payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar monthby any Borrower Party shall come due on a day other than a Business Day, such payment shall be made on the immediately preceding next following Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case such extension of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower time shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders reflected in computing interest or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuersfees, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Franklin BSP Capital Corp), Revolving Credit Agreement (Franklin BSP Capital Corp)
Payments Generally. (a) Except as otherwise provided hereinin clause (b) below, including pursuant to Section 3.01, all payments to be made each payment by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the on account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on the Term Loans or of any Obligations denominated infee, and commission or other amounts payable to the Lenders under this Agreement shall be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds made not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute for payment under this Agreement to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City timePayment Account, in the case of payments Dollars, in Dollars immediately available funds and shall be made without any set-off, counterclaim or (ii) deduction whatsoever. Any payment received after 12:00 noon New York City time in the case of payments in an Alternative Currency, 2:00 p.m. shall in each case be deemed received to have been made on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) for all purposes hereunder. If any payment under this Agreement shall be specified to be made by the Borrower shall come due on upon a day other than which is not a Business Day, payment it shall be made on the next following succeeding day which is a Business Day, Day and such extension of time shall in such case be reflected included in computing any interest or fees, as the case may be; provided that, if payable along with such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Daypayment.
(b) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless an Event of Default shall have occurred and be continuing, the Administrative Agent shall not apply any payments which it receives to any Eurodollar Rate Loans, except (i) Unless on the expiration date of the Interest Period applicable to any such Eurodollar Rate Loans or (ii) in the event that there are no outstanding Base Rate Loans; provided that the Administrative Agent will attempt to honor any written request received from the Borrower to hold such payment until the expiration of the applicable Interest Period, it being understood and agreed that the Administrative Agent shall have received notice from a Lender prior no liability for any failure to do so.
(c) To the proposed time of extent that any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of Loan Party makes a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest payments to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account benefit of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that receives any payment or proceeds of Collateral which payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the Borrower has made extent of such payment on or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such date in accordance herewith and may, payment or proceeds had not been received by the Administrative Agent. This Section 3.5(c) shall remain effective notwithstanding any contrary action which may be taken by the Administrative Agent or any Lender in reliance upon such assumption, distribute to payment or proceeds. This Section 3.5 shall survive the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each payment of the Appropriate Lenders or Obligations and the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 termination of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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 interestAgreement.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments The Borrower shall make each payment required to be made by it under any Transaction Document (whether of principal, interest, fees or other amounts) prior to the Borrower shall be made time expressly required hereunder or under such other Transaction Document for such payment (or, if no such time is expressly required, prior to 1:00 P.M. (Mountain time) on the date when due, in immediately available funds, without condition setoff or deduction for counterclaim. Any amounts received after such time on any counterclaimdate may, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by in the Borrower hereunder shall be made to sole discretion of the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case 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 pursuant to Section 3.2, Section 12.4 and Section 12.7 shall be made directly to the Persons entitled thereto and payments pursuant to other Transaction 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 under any Transaction 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. In the case of any payment of principal pursuant to the preceding two sentences, Interest thereon shall be payable at the then applicable interest or fee rate for the period of such extension. All payments under each Transaction Document shall continue to accruebe made in Dollars.
(b) If at any payment time insufficient funds are received by and available to be made by the Borrower shall come Administrative Agent to pay fully all amounts of principal, interest and fees then due on a day other than a Business Dayhereunder, payment such funds shall be made on the next following Business Day, and such extension of time shall be reflected applied in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Dayaccordance with Section 2.7.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received written notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, but shall not be obligated to, in reliance upon such assumptionassumption and in its sole discretion, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant Notwithstanding anything to Section 3.01the contrary in this Agreement or the other Loan Documents, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 's Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable 's Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.. Alderwoods Credit Agreement
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender's Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent's demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension set forth in Article IV are not satisfied or waived in Alderwoods Credit Agreement 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided hereinUpon the occurrence and during the continuance of an Event of Default, whenever the Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Lender, to charge from time to time against any or all of the Borrower's accounts with such Lender any amount so due.
(h) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent Agents and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent Agents and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s 's Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by under this Agreement or the Borrower Notes shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to in United States Dollars in funds which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds are immediately available not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date relevant dates specified herein. The Administrative Agent will promptly distribute to above (each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to made after such Lender’s applicable Lending Office. All payments received by the Administrative Agent time on the such due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case to be deemed received to have been made on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(bBanking Day) If any payment to be made by at the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent Chase Office for the account of each Lender, and all such payments may be made by making a Revolving Credit Loan to the Lenders Borrowers for the amount thereof (or during the continuance of an L/C Issuer hereunder that Event of Default, debiting the Borrower will not make such paymentCollection Account for the payment thereof to the Lenders). The Agent, the Administrative Agent may assume that the Borrower has made or any Lender for whose account any such payment on is to be made, may (but shall not be obligated to) debit the amount of any such date in accordance herewith and may, in reliance upon payment which is not made by such assumption, distribute time to any ordinary deposit account of the Appropriate Lenders Borrowers with the Agent or the applicable L/C Issuerssuch Lender, as the case may be, and any Lender so doing shall promptly notify the amount dueAgent. In such eventSubject to Section 11.16, if the Borrower has not in fact made such paymentBorrowers shall, then at the time of making each of the Appropriate Lenders payment under this Agreement or the applicable L/C IssuersNotes, as the case may be, severally agrees to repay specify to the Administrative Agent forthwith the principal or other amount payable by the Borrowers under this Agreement or the Notes to which such payment is to be applied and in the event that it fails to so specify, or if a Default or Event of Default has occurred and is continuing, the Agent may, subject to Section 11.16, apply such payment as it may elect in its sole discretion. If the due date of any payment under this Agreement or the Notes would otherwise fall on demand a day which is not a Banking Day, such date shall be extended to the amount next succeeding Banking Day and interest shall be payable for any principal so distributed extended for the period of such extension. Each payment received by the Agent hereunder or under any Note for the account of a Lender shall be paid promptly to such Lender or such L/C IssuerLender, in immediately available funds with interest thereonfunds, for each day from and including the date such amount is distributed to it to but excluding the date account of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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's Lending Office.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to in Section 3.012.12 hereof, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, including in Section 2.12 hereof, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) for payment and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York, New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency), shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent hereunder for the account of the Lenders or an L/C Issuer hereunder any Lender, that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon thereon, make available a corresponding amount to such assumptionLender. Except as provided in Section 2.12 hereof, distribute if and to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In extent that such event, if the Borrower has payment was not in fact made such paymentto the Administrative Agent in Same Day Funds, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to such Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuerin Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined was made available by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Overnight Rate from time to any Lender or the Borrower with respect to any amount owing under this clause (c) shall be conclusive, absent demonstrable errortime in effect.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans 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 10.04(c) Loan 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, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent, the Collateral Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified hereinherein or such later time as the Administrative Agent may otherwise determine in its reasonable discretion. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All Unless otherwise agreed by the Administrative Agent, all payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City timep.m., in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Eurocurrency Rate Loans or Base Rate Loans that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Eurocurrency Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iid) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from the Borrower Agent, prior to the time at which date any payment is due required to be made by it to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the Federal Funds Rate; and
(ii) if any Lender failed to but make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(d) shall be conclusive, absent demonstrable error.
(de) 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 Credit Extension 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.
(ef) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(fg) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gh) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(i) Any and all payments by or on behalf of any Loan Party under any Loan Document (including, for the avoidance of doubt, any gross-up or indemnification payments made under any Loan Document) are exclusive of VAT.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the any Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the a Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Appropriate Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) relevant currency and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or by 12:00 noon New York City time on the date specified herein, except in the case of Obligations denominated payments made in an Alternative CurrencyDollars, in each case which shall arrive no later than 3 p.m. New York time on the date specified herein. The Administrative Agent will promptly distribute as soon as practicable to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. 12:00 noon New York City time, or in the case of payments made in Dollars or (ii) after 12:00 noon Dollars, 3 p.m. New York City time in the case of payments in an Alternative Currencytime, shall in each case be deemed received on the next succeeding Business Day Day, in the Administrative Agent’s sole discretion, and any applicable interest or fee shall continue to accrue.
(b) If Except as otherwise provided herein, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless any Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if such Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuerin Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment (including, without limitation, failure to fund participations in respect of any Letter of Credit), such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 ARTICLE II, and such funds are not made available to the relevant Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article ARTICLE IV or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower of principal, interest, fees and other Obligations shall be made (i) with respect to the 2018 Term B Loans, 2023 Term B Loans, 2024 Term B Loans and Term A Loans in Dollars, and (ii) with respect to the Revolving Credit Commitments and Letters of Credit, in the applicable Approved Currency in which such Obligations are denominated, without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency2:00 p.m., in each case Local Time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m., Local Time, shall (i) after 3:00 p.m. New York City time, in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Other than as specified herein, all payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in Dollars.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans, Alternative Currency Term Rate Loans or Term SOFR Loans, as applicable, to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available payment on such date in accordance with Section 2.02 and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share to the Administrative Agent in immediately available funds, then
(i) if the Borrower failed to make such payment, then each of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower Lenders severally agree to pay to the Administrative Agent forthwith on demand the portion of such corresponding amount assumed payment that was made available to such Lenders in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by the Administrative Agent to such Lenders to the date such amount is repaid to the Administrative Agent in immediately available funds at the Overnight Rate plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to generally similarly situated borrowers (but not necessarily all such borrowers) in connection with the foregoing; it being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Xxxxxx xxxxxxxxx; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined amount is recovered by the Administrative Agent in accordance with banking industry rules on interbank compensation(the “Compensation Period”) at the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoingforegoing plus, and to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to generally similarly situated borrowers (Bbut not necessarily all such borrowers) in connection with the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loansforegoing. If the Borrower and When such Lender shall pay such interest makes payment to the Administrative Agent for the same or an overlapping period(together with all accrued interest thereon), the Administrative Agent shall promptly remit to the Borrower then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to its payment under Section 10.04(c) 9.07 are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)9.07.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Loan Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Loan Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments Each Borrower shall make each payment and prepayment required to be made by the Borrower shall be made without condition it hereunder (whether of principal, interest, fees or deduction for reimbursement of LC Disbursements, or under Section 2.15, 2.16, or 11.04, or otherwise) or under any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made other Loan Document (except to the Administrative Agentextent otherwise provided therein) prior to 2:00 p.m., for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the case discretion of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative CurrencyAdministrative Agent, shall in each case be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments and any applicable interest prepayments shall be made to the Administrative Agent to the Administrative Agent’s Account, except as otherwise expressly provided in the relevant Loan Document and except payments to be made directly to an Issuing Lender or fee the Swingline Lender as expressly provided herein and payments pursuant to Sections 2.15, 2.16, 11.03 and 11.04, which shall continue be made directly to accrue.
(b) the Persons entitled thereto. If any payment to or prepayment hereunder shall be made by the Borrower shall come due on a day other than that is not a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of for payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuersprepayment, as the case may be, shall be extended to the amount duenext succeeding Business Day and, in the case of any payment or prepayment accruing interest, interest thereon shall be payable for the period of such extension. In The Administrative Agent shall distribute any payments received by it for account of any other Person to the appropriate recipient promptly following receipt thereof, provided that any such eventpayment received by it upon the exercise of remedies hereunder or under the other Loan Documents shall be applied to the Obligations hereunder in the following order: first, if to the Borrower has not in fact made such payment, then each payment of the Appropriate Lenders or the applicable L/C Issuerscosts and expenses of collecting such payments, 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 L/C Issuer, in immediately available funds with interest thereon, for each day from including reasonable out-of-pocket costs and including the date such amount is distributed to it to but excluding the date expenses of payment to the Administrative Agent, at and the greater fees and expenses of the Federal Funds Rate its agents and a rate determined by counsel, in each case in such order as the Administrative Agent shall in accordance with banking industry rules on interbank compensation. A notice its sole discretion determine; second, to the payment of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause Obligations (c) shall be conclusiveincluding cover for Letters of Credit outstanding hereunder), absent demonstrable error.
(d) 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 Credit Extension set forth in Article IV are not satisfied or waived each case ratably in accordance with the terms hereofrespective amounts thereof (except that the portion, if any, of LC Disbursements made by the Administrative Agent shall return such funds (respective Issuing Lenders in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations excess of the amount thereof that the Revolving Credit Lenders hereunder are required to make Loans, pay to fund participations the Issuing Lenders under Section 2.05(e) in respect of drawings on Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for paid in full prior to the failure payment of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(cObligations).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.; and
Appears in 1 contract
Samples: Credit Agreement (Foster Wheeler Ag)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 2:00 p.m. (New York, New York City time time) on the dates specified herein; provided that all payments by the Borrower hereunder in case respect of principal of and interest on Revolving Credit Loans denominated in Euros shall be made to the Administrative Agent, for the account of the Obligations denominated respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Euros and in Same Day Funds not later than 2:00 p.m. (London time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in Euros that is otherwise required pursuant hereto to be made in Euros, the Borrower shall make such payment in Dollars or 12:00 noon New York City time in the case Dollar Amount of Obligations denominated in an Alternative Currency, in each case on the date specified hereinEuro payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. (New York, New York City time, ) in the case of payments in Dollars or (ii) after 12:00 noon New York City time 2:00 p.m. (London time) in the case of payments in an Alternative CurrencyEuros, shall shall, in each case case, be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency LIBO Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Lead Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, that the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by Borrowers or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made Borrowers or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrowers failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuerin Same Day Funds, in immediately available funds together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in Same Day Funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor the Lead Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Lead Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Trinseo S.A.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Euros, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers hereunder with respect to principal and interest on Loans denominated in Euros 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) Euros and in Same Day Funds same day funds not later than 3:00 2:00 p.m. New York City time (London time) on the dates specified herein. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in case Euros, such Borrower shall make such payment in Dollars in the Dollar Amount of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified hereinEuro payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 4:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day in the Administrative Agent’s sole discretion and any applicable interest or fee shall continue to accrueaccrue to the extent applicable.
(b) If any payment to be made by the any Borrower shall come due on a day other than a Business DayDay in relation to such Borrower, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Eurodollar Rate Loans or EURIBOR Loans, as the case may be, to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless any Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the such Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if any Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed repaid to it the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to but time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the relevant Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the date amount of payment any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the relevant Borrower, and the relevant Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the greater of the Federal Funds Rate and a rate determined by per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent in accordance with banking industry rules on interbank compensationor any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any relevant Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the relevant Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (ai) the Outstanding Amount of all Loans outstanding at such time and (bii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Sensata Technologies Holland, B.V.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and, except with respect to principal of and interest on Loans denominated in Euro, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case 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 Euro 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 Euro and in Same Day Funds not later than 3:00 p.m. London time on the date specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in Euro, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Euro payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars (or (ii) after 12:00 noon New York City 3:00 p.m. London time in the case of payments in an Alternative Currency, Euro) shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that such Lender the Borrower or Lenders, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative AgentAgent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then the applicable Lender and the Borrower severally agree agrees to pay to the Administrative Agent forthwith on demand the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by the Administrative Agent to such Lender to the Borrower to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus it being understood that nothing herein shall be deemed to relieve any administrative, processing Lender from its obligation to fulfill its Commitment or similar fees customarily charged by to prejudice any rights which the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against any Lender as a result of any default by such Lender that shall have hereunder; and
(ii) if any Lender failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent payment, such Lender shall have received notice from the Borrower prior to the time at which any payment is due forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the account of period from the Lenders or an L/C Issuer hereunder that the Borrower will not make date such payment, amount was made available by the Administrative Agent may assume that to the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 recovered by the Administrative Agent, Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Holley Inc.)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by or on account of any obligation of the Borrower hereunder shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff, except with respect to Taxes as provided in Section 3.01. Except as otherwise expressly provided herein, all payments by or on account of any obligation of the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Agent at the applicable Administrative Agent’s Office Agent Account in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except to the extent otherwise provided herein, the Loans, each payment or prepayment of principal of the Loans, each payment of interest on the Loans, each payment of any applicable Prepayment Amount and each other payment to be made by the Borrower shall come due on a day other than a Business Day, payment hereunder shall be made on allocated among the next following Business Day, and such extension Lenders pro rata in accordance with their Ratable Shares of time shall be reflected in computing interest or fees, as the case may be; Loans (provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans the Borrower makes an election pursuant to be made in the next succeeding calendar monthSection 2.11(j), such payment shall be made allocated to the Lenders holding Loans of the Type so prepaid pro rata in accordance with their Ratable Shares of the Loans of such Type). The Administrative Agent agrees to forward to the Lenders such principal, interest and other payments on the immediately preceding same Business Day as such amounts are received, collected or applied by the Administrative Agent from the Borrower, unless the Administrative Agent receives such amounts after 11:00 a.m., in which case such payments may be forwarded by the Administrative Agent to the Lenders on the next Business Day.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing Loan that such Lender will not make available to the Administrative Agent such Lender’s share Applicable Percentage of such BorrowingLoan, the Administrative Agent may assume that such Lender has made such share Applicable Percentage of such Loan available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share Applicable Percentage of the applicable Borrowing such Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Ai) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, compensation and (Bii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate LoansFloating Rate. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share Applicable Percentage of the applicable Borrowing Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowingborrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such paymentpayment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date in accordance herewith and the Administrative Agent may, in reliance upon such assumption, distribute cause to be distributed to each Lender on such due date an amount equal to the Appropriate Lenders or amount then due such Lender. If and to the applicable L/C Issuers, as the case may be, the amount due. In such event, if extent the Borrower has shall not in fact have so made such paymentpayment in full to the Administrative Agent, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall repay to the Administrative Agent forthwith on demand the such amount so distributed to such Lender or such L/C Issuer, in immediately available funds together 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, thereon at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the date such amount is distributed to such Lender to but excluding the date such Lender or the Borrower repays such amount to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, conclusive absent demonstrable manifest error.
(de) Except as expressly set forth herein, if any payment to be made by or on account of any obligation of the Borrower or the date for the performance of any covenant shall come due on a day other than a Business Day, payment or performance, as applicable, shall be made on the next following Business Day, and, for payments, such extension of time shall be reflected in computing interest.
(f) Nothing herein shall be deemed to obligate a Lender to obtain the funds for its Ratable Share of the Loans in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Ratable Share of the Loans in any particular place or manner.
(g) 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 Credit Extension credit extension 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.
(eh) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).
(fi) Nothing herein All payments (including prepayments and any other amounts received hereunder other than payments and amounts received in connection with the exercise of the Agents’ and each Applicable Lenders’ rights after an Event of Default) made by the Borrower to Administrative Agent or any Lender under any Loan Document shall be deemed applied to obligate amounts then due and payable in the following order: (i) to any expenses and indemnities payable by the Borrower to any Agent under any Loan Document, (ii) ratably to any expenses and indemnities payable by the Borrower to any Lender to obtain the funds for under any Loan in Document, (iii) subject to Section 2.11(j), to any particular place or manner or accrued and unpaid interest and fees due under this Agreement, (iv) subject to constitute a representation by Section 2.11(j), to principal payments on the outstanding Initial Loans, Delayed Draw Loans, Kodiak Pay-off Loans and/or other Additional Loans (if any) pro rata and (v) to the extent of any Lender that it has obtained or will obtain excess, to the funds for any payment of all other Obligations under the Loan in any particular place or mannerDocuments.
(gj) Except as otherwise provided hereinNotwithstanding anything herein to the contrary, whenever any payment received by the Administrative Agent under nothing in this Agreement or any other Loan Document shall apply to or restrict (A) the payment of the Commitment Fee, other fee (including any Prepayment Amount) or interest payable with respect to any Initial Loans, Delayed Draw Commitment, Delayed Draw Loans, Additional Loan Documents is insufficient Commitments and/or Additional Loans, as applicable or (B) the reduction or termination of the Delayed Draw Commitments, Kodiak Pay-off Loan Commitments and/or other Additional Loan Commitments pursuant to pay Section 2.08 (and payments of Commitment Fees due on the date of any such termination) or the prepayment of any Initial Loans, Delayed Draw Loans, Kodiak Pay-off Loans and/or other Additional Loans (if any), whether in full all amounts due and payable or in part, pursuant to Section 2.04 or Section 2.09(a), in each case, on a non-pro rata basis with respect to any other Type of Loans as the Borrower shall elect; provided that (x) if the Borrower does not make such election prior to or concurrently with delivering a Voluntary Prepayment Notice, if applicable, any such payments will be applied on a pro rata basis to the Administrative Agent outstanding Initial Loans, Delayed Draw Loans, Kodiak Pay-off Loans and/or other Additional Loans (if any) and (y) notwithstanding any of the foregoing, prepayments of the Initial Loans and the Lenders under Kodiak Pay-off Loans, whether in full or in respect of this Agreement and the other Loan Documents on any datepart, such payment pursuant to Section 2.04 or Section 2.09(a), in each case, shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lendermade on a pro rata basis.
Appears in 1 contract
Samples: Margin Loan Agreement and Collateral Account Control Agreement (Liberty Broadband Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to an Approved Foreign 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 (or, in the case of principal of or interest on any Obligations for Dollar-denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) payments and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder in an Approved Foreign 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 Approved Foreign Currency and in Same Day Funds not later than 2:00 p.m. (London time) (or, if earlier, 9:00 a.m. New York city time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any 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. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on after the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, specified above shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans or Term SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative AgentAgent in Same Day Funds, then then:
(i) with respect to any payment that the applicable Lender and Administrative Agent makes for the account of the Lenders hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the Borrower has failed to make 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 agree agrees to pay repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such corresponding amount Lender in immediately available funds Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationSame Day Funds at the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii) if any Lender failed to make such payment (including, and (B) without limitation, failure to fund participations in the case respect of a payment to be made by the Borrowerany Letter of Credit or Swing Line Loan), the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall forthwith on demand pay such interest to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the same or an overlapping period, period from the date such amount was made available by the Administrative Agent shall promptly remit to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit or Swing Line Loan) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such LenderXxxxxx’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 U.S. Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment following receipt thereof in like funds as received by wire transfer to such LenderXxxxxx’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, may be deemed in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed Administrative Agent’s sole discretion received on the next succeeding Business Day and any applicable interest or fee fees shall continue to accrue.
(b) If accrue thereon. Except as otherwise provided herein, if any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided provided, however, that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Term SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day. Notwithstanding anything to the contrary set forth herein, to the extent the Administrative Agent receives a payment or other amount after such payment or other amount is due and payable, the Administrative Agent may, in its sole discretion, pay such payment or other amount to the appropriate Lender or other person of record as of the date such payment is received.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing of Term SOFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender Xxxxxx has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the BorrowerBorrowers, the interest rate applicable to Base Rate Loans. If the Borrower Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower Borrowers the amount of such interest paid by the Borrower Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower Borrowers shall be without prejudice to any claim the Borrower Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower Borrowers prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer Issuers hereunder that the Borrower Borrowers will not make such payment, the Administrative Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 the L/C Issuer, 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 Borrowers with respect to any amount owing under this clause (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender Xxxxxx as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV V 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.
(ed) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c11.04(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 10.04(c11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c11.04(c).
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) The Borrowers hereby authorize each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Xxxxxx, to charge from time to time against any or all of the Borrowers’ accounts with such Lender any amount so due.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender9.03.
Appears in 1 contract
Samples: Credit Agreement (Acuren Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant Subject to Section 3.01, all payments to be made by the Borrower Borrowers shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. (New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case time) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m. (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue; provided, that for the avoidance of doubt, any payment which is received by the Administrative Agent later than 2:00 p.m. (New York City time) on the applicable due date shall not constitute an Event of Default hereunder so long as such payment is received by the Administrative Agent prior to 5:00 p.m. (New York City time) on such due date.
(b) If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided thatprovided, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless any Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that such Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that such Lender Borrower or such Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative AgentAgent in immediately available funds, then:
(i) if any Borrower failed to make such payment, then the applicable Lender and the Borrower severally agree agrees to pay to the Administrative Agent forthwith on demand the portion of such corresponding amount assumed payment that was made available to such Lender in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available by the Administrative Agent to such Lender to the Borrower to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the such Administrative Agent in connection with the foregoing. It being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make such payment, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall forthwith on demand pay such interest to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the same or an overlapping period, period from the date such amount was made available by the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing Borrowers to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 recovered by the Administrative Agent, Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationcompensation plus any administrative, processing or similar fees customarily charged by such Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the any Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make reimbursement payments pursuant to under Section 10.04(c) 9.07 are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment reimbursement payments under Section 10.04(c) 9.07 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, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(h) Each Loan shall be repaid, whether pursuant to Section 2.05 or otherwise, in the currency in which such Loan was made.
Appears in 1 contract
Samples: First Lien Credit Agreement (ONESPAWORLD HOLDINGS LTD)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) Lender after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, 11:59 a.m. EST shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) . If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ib) Unless the Administrative Agent The Loan shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and maybe repaid, in reliance upon such assumptionpart, make available to from the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share proceeds of the applicable Borrowing available to the Administrative Agent, then the applicable Lender Production Contract Receivables and the Collateral. Borrower severally agree to shall irrevocably direct that the escrow agent/Collection Agent pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available all Production Contract Receivables and other funds with interest thereon, for each day from and including the date such amount is made available due to the Borrower to but excluding the date of payment Lockbox Account. All Production Contract Receivables received either electronically via ACH to the Administrative AgentBorrowers, at (A) in including prepayments from the case disposition of Collateral, insurance proceeds or otherwise, shall be remitted to Lender upon receipt. To the extent that an Event of Default has not occurred or continuing under terms hereof or of a payment to be made by such LenderLoan Document, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit will release to the Borrower 40% of the Production Contract Receivables. All payments received and retained by the Lender shall be first applied to fees and expenses of the Lender, then to the accrued but unpaid Interest and then allocated to the principal amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s outstanding Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative AgentAmount.
(iic) Unless the Administrative Agent All payments hereunder shall have received notice from the Borrower prior to the time at which be made without any payment is due to the Administrative Agent for the account of the Lenders deduction, abatement, set-off or an L/C Issuer hereunder that the Borrower will not make such paymentcounterclaim whatsoever, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute rights to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 Rate and a rate determined which are hereby specifically waived 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 (c) shall be conclusive, absent demonstrable errorBorrowers.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as Unless otherwise provided herein, including pursuant to Section 3.01agreed in writing by Lenders, all payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account Lenders under any provision of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient shall be in U.S. Dollars in immediately available funds by wire transfer. Borrower shall make each payment due to pay in full all amounts due and payable each Lender under this Agreement to the Administrative Agent account specified by such Lender to Borrower in writing. Each Lender understands that Borrower and Administrator will rely on the Lenders under or in respect of this Agreement account number and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority ABA routing number set forth in Section 8.03the applicable notice from such Lender. If the Administrative Agent receives funds for application Each Lender shall notify Administrator and Borrower in writing, at least ten (10) Business Days prior to the Obligations a Payment Date, of any changes to such Lender’s account details.
(b) Borrower shall pay any and all costs (administrative or otherwise) imposed by its banks, clearing houses, or any other financial institution, in connection with making any payments under any of the Loan Parties Documents.
(c) If the due date of any payment under or this Agreement would otherwise fall on a day that is not a Business Day, such date shall be extended to the next succeeding Business Day and interest, accruing at the Interest Rate, shall be payable on any principal so extended for the period of such extension.
(d) Unless expressly set forth herein, each payment (including any prepayment and payment on the Maturity Date pursuant to Section 2.7(b)) by Borrower (including, for the avoidance of doubt, payment by application of all amounts in respect the Collection Account on any Payment Date), on account of principal of and interest on
(i) the Class A Loans shall be made pro rata according to the respective outstanding principal amounts of the Loan Documents under circumstances for which Class A Loans then held by the Loan Documents do not specify Class A Lenders;
(ii) the manner in which such funds are to Class B Loans shall be applied, the Administrative Agent may (made pro rata according to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each respective outstanding principal amounts of the Lenders in accordance with such Lender’s Pro Rata Share Class B Loans then held by the Class B Lenders; and
(iii) the Class C Loans shall be made pro rata according to the respective outstanding principal amounts of the sum of (a) Class C Loans then held by the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/Class C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such LenderLenders.
Appears in 1 contract
Samples: Loan Agreement
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by or on account of any obligation of the Borrower hereunder shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff, except with respect to Taxes as provided in Section 3.01. Except as otherwise expressly provided herein, all payments by or on account of any obligation of the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Agent at the applicable Administrative Agent’s Office Agent Account in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any Except to the extent otherwise provided herein, the Loans, each payment to be made by or prepayment of principal of the Borrower shall come due on a day other than a Business DayLoans, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause each payment of interest on the Loans, each payment of the Prepayment Amount and each other payment hereunder shall be allocated among the Lenders pro rata in accordance with their Ratable Shares of the Loans. The Administrative Agent agrees to forward to the Lenders such principal, interest and other payments on the same Business Day as such amounts are received, collected or principal of Eurocurrency Rate Loans applied by the Administrative Agent from the Borrower, unless the Administrative Agent receives such amounts after 11:00 a.m., in which case such payments may be forwarded by the Administrative Agent to be made in the Lenders on the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing Loan that such Lender will not make available to the Administrative Agent such Lender’s share Applicable Percentage of such BorrowingLoan, the Administrative Agent may assume that such Lender has made such share Applicable Percentage of such Loan available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share Applicable Percentage of the applicable Borrowing such Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Ai) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, compensation and (Bii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate LoansFloating Rate. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share Applicable Percentage of the applicable Borrowing Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowingborrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such paymentpayment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date in accordance herewith and the Administrative Agent may, in reliance upon such assumption, distribute cause to be distributed to each Lender on such due date an amount equal to the Appropriate Lenders or amount then due such Lender. If and to the applicable L/C Issuers, as the case may be, the amount due. In such event, if extent the Borrower has shall not in fact have so made such paymentpayment in full to the Administrative Agent, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall repay to the Administrative Agent forthwith on demand the such amount so distributed to such Lender or such L/C Issuer, in immediately available funds together 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, thereon at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the date such amount is distributed to such Lender to but excluding the date such Lender or the Borrower repays such amount to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, conclusive absent demonstrable manifest error.
(de) Except as expressly set forth herein, if any payment to be made by or on account of any obligation of the Borrower or the date for the performance of any covenant shall come due on a day other than a Business Day, payment or performance, as applicable, shall be made on the next following Business Day, and for payments such extension of time shall be reflected in computing interest.
(f) Nothing herein shall be deemed to obligate a Lender to obtain the funds for its Ratable Share of the Loans in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Ratable Share of the Loans in any particular place or manner.
(g) 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 Credit Extension credit extension 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.
(eh) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Samples: Margin Loan Agreement (Liberty Expedia Holdings, Inc.)
Payments Generally. (a) Except as Unless otherwise provided herein, including pursuant to Section 3.01specified in this Agreement, all payments under this Agreement or the Notes, other than payments of fees and expenses with respect to Letters of Credit which shall be made directly by the Borrower to the Issuing Bank pursuant to the procedures and requirements of the Issuing Bank and the terms of this Agreement, shall be made without condition in Dollars in immediately available funds not later than 1:00 p.m. (New York time) on the relevant dates specified above (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Banking Day) to the Agent, at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 for the benefit of the applicable Lending Office of each Bank. The Borrower will notify each of the Banks of any payment to the Agent pursuant to the provisions of this section at the same time it makes any such payment and will notify the Agent of any payment to the Issuing Bank of any amounts payable with respect to a Letter of Credit hereunder at the same time it makes any such payment. The Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrower with the Agent and the Agent may (but shall not be obligated to) require each of the Banks to debit its pro rata portion (subject to Section 11.16 hereof) of the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrower with any such Bank; provided, however, that no Bank shall be required to debit any funds which are not available to the Borrower other than on an overdraft basis. The Borrower shall, at the time of making each payment under this Agreement or deduction for any counterclaimthe Notes, defense, recoupment specify to the Agent the principal or setoff. Except as otherwise expressly provided herein, all payments other amount payable by the Borrower hereunder shall be made to under this Agreement or the Administrative Agent, for the account of the respective Lenders Notes to which such payment is owedto be applied; provided, at the applicable Administrative Agent’s Office in Dollars (orhowever, that in the case event that the Borrower fails to so specify, or if (x) a Default has occurred and is continuing, or (y) an Event of principal Default pursuant to any of Section 10.01(a), Section 10.01(b) (only if due to fraud), any of Sections 10.01(c)(i)(A)-(B), Section 10.01(e) or interest Section 10.01(h) of this Agreement has occurred, or (z) an Event of Default pursuant to any of Section 10.01(b) (only if not due to fraud), any of Sections 10.01(c)(i)(C) or (ii), Section 10.01(d), Section 10.01(f), Section 10.01(g), Section 10.01(i) or Section 10.01(j) of this Agreement has occurred and is continuing, the Agent shall apply such payment as it may elect in its sole discretion (subject to Section 11.16 hereof). If the due date of any payment under this Agreement or the Notes would otherwise fall on any Obligations denominated in, and to be paid in, an Alternative Currencya day which is not a Banking Day, such Alternative Currency) date shall be extended to the next succeeding Banking Day and in Same Day Funds not later than 3:00 p.m. New York City time in case of interest shall be payable for any principal so extended for the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) period of such extension. Each payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars hereunder or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and under any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent Note for the account of a Bank or the Lenders Issuing Bank shall be paid promptly to such Bank or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersIssuing Bank, as the case may be, in immediately available funds, for the amount due. In account of such event, if Bank's Lending Office or for the Borrower has not in fact made such payment, then each account of the Appropriate Lenders or office specified by the applicable L/C IssuersIssuing Bank to the Agent, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(db) If any Lender makes available to All payments made by the Administrative Agent funds for any Loan to Borrower under this Agreement, the Notes or the other Facility Documents shall be made by such Lender as provided in the foregoing provisions of this Article IIfree and clear of, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied without deduction 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.withholding for
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Revolving Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Subject to the provisions of the definition of “Interest Period”, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, if such extension would cause prior to the date any payment of interest on or principal of Eurocurrency Rate Loans is required to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available by it to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall forthwith on demand repay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, at then such amount shall constitute such Lender’s Loan included in the greater of applicable Borrowing. If such Lender does not pay such amount forthwith upon the Federal Funds Rate and a rate determined by Administrative Agent’s demand therefor, the Administrative Agent in accordance may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with banking industry rules on interbank compensationinterest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (c) shall be conclusive, absent demonstrable manifest error.
(d) 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by under this Agreement or the Borrower Revolving Credit Notes shall be made without condition or deduction for any counterclaimin Dollars in immediately available funds to the Agent, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by in accordance with the respective obligations of the Borrower hereunder shall be made then due and payable to the Administrative Agent, for the account each of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds them not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date relevant dates specified herein. The Administrative Agent will promptly distribute to above (each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to made after such Lender’s applicable Lending Office. All payments received by the Administrative Agent time on the such due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case is to be deemed received to have been made on the next succeeding Business Day and any applicable interest or fee shall continue Banking Day), to accrue.
(b) If the Agent's Lending Office. The Borrower will notify the Agent of any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior pursuant to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Section at the same time it makes any such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not jointpayment. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent Bank may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect ) debit the amount of any such payment to distribute such funds to each any ordinary deposit account of the Lenders Borrower with such Bank; provided, however, that the Agent shall not be permitted to debit any funds which are not available to the Borrower other than on an overdraft basis. The Borrower shall, at the time of making each payment under this Agreement or the Revolving Credit Notes, specify to the Agent the principal or other amount payable by the Borrower under this Agreement or the Revolving Credit Notes to which such payment be applied; provided, however, that in the event that the Borrower fails to so specify, or if an Event of Default has occurred and is continuing, the Banks shall apply such payment as they may elect in their sole discretion. If the due date of any payment under this Agreement or the Revolving Credit Notes would otherwise fall on a day which is not a Banking Day, such date shall be extended to the next succeeding Banking Day and interest shall be payable for any principal so extended for the period of such extension. Except to the extent otherwise provided herein, it is the intention of the parties that all payments hereunder be applied to the Banks pro rata in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and their respective Commitment Proportions.
(b) All payments made by the Outstanding Amount Borrower under this Agreement, the Revolving Credit Notes or the other Facility Documents shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any governmental or taxing authority of all L/C Obligations outstanding at any jurisdiction, excluding, (x) in the case of each Bank, income taxes and franchise taxes (imposed in lieu of income taxes) imposed on such timeBank as a result of a present or former connection between the jurisdiction of the government or the taxing authority imposing such tax and such Bank (excluding a connection arising solely from such Bank having executed, delivered, or performed its obligations or received a payment under, or enforced, this Agreement, the Revolving Credit Notes or the other Facility Documents) or any political subdivision or taxing authority thereof or therein, and (y) taxes (including withholding taxes) imposed by reason of the failure of the Agent or any Bank, in repayment either case that is organized outside the United States, to comply with Section 3.7(c) hereof (or prepayment of such the inaccuracy at any time of the outstanding Loans or certificates, documents and other Obligations then owing to evidence delivered thereunder) (all such Lender.non-excluded taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called "Taxes"
Appears in 1 contract
Payments Generally. (a) Except as Unless otherwise provided specified herein, including pursuant to Section 3.01, all payments the Borrower shall make each payment required to be made by it hereunder (including under Section 2.12, 2.13, 2.16 or otherwise) prior to 1:00 p.m., Local Time, on the Borrower shall be made date when due and in immediately available funds, without condition set-off or deduction for counterclaim. Any amounts received after such time on any counterclaimdate may, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by in the Borrower hereunder shall be made to discretion of the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case 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 designated to the Borrower by the Administrative Agent, except that payments pursuant to Sections 2.12, 2.13, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute in like funds any such payments received by the Administrative agent for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in the currency in which the applicable interest or fee shall continue to accruepayment obligation is due.
(b) If at any payment to be made time insufficient funds are received by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such Lender’s share funds shall be applied (i) first, towards payment of such Borrowinginterest and fees then due hereunder, ratably among the Administrative Agent may assume that such Lender has made such share available on such date parties entitled thereto in accordance with Section 2.02 the amounts of interest and mayfees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in reliance upon accordance with the amounts of principal then due to such assumptionparties.
(c) If any Lender shall, make available by exercising any right of counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans hereunder resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans under such Facility and accrued interest thereon than the proportion received by any other Lender within such Facility, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders within such Facility to the extent necessary so that the benefit of all such payments made under such Facility shall be shared by the Lenders within such Facility ratably in accordance with the aggregate amount of principal of and accrued interest on their respective 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 any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or Participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a corresponding amount. In participation pursuant to the foregoing arrangements may exercise against the Borrower rights of counterclaim with respect to such event, participation as fully as if such Lender were a Lender has not in fact made its share direct creditor of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agentparticipation.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment from the Borrower is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) 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 Credit Extension 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 interestEffective Rate.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of If any Lender to make any Loan, to fund any such participation or shall fail to make any payment under required to be made by it pursuant to Section 10.04(c2.04(b) on or 2.14(d), then the Administrative Agent may, in its discretion (notwithstanding any date required hereunder shall not relieve contrary provision hereof), apply 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, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment amounts thereafter received by the Administrative Agent under this Agreement or any for the account of the other Loan Documents is insufficient such Lender to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with satisfy such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of obligations under such Sections until all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lenderunsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided hereinherein and except with respect to an Approved Foreign 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 (or, in the case of principal of or interest on any Obligations for Dollar-denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) payments and in Same Day Funds not later than 3:00 1:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder in an Approved Foreign 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 Approved Foreign Currency and in Same Day Funds not later than 2:00 p.m. (London time) (or, if earlier, 9:00 a.m. New York city time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any 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. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on after the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, specified above shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, that if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans or Term SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender’s share of , as the case may be, will not make such Borrowingpayment, the Administrative Agent may assume that the Borrower or such Lender Lender, as the case may be, has timely made such share available on such date in accordance with Section 2.02 payment and maymay (but shall not be so required to), in reliance upon such assumptionthereon, make available a corresponding amount to the Borrower a corresponding amountPerson entitled thereto. In If and to the extent that such event, if a Lender has payment was not in fact made its share of the applicable Borrowing available to the Administrative AgentAgent in Same Day Funds, then then:
(i) with respect to any payment that the applicable Lender and Administrative Agent makes for the account of the Lenders hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the Borrower has failed to make 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 agree agrees to pay repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such corresponding amount Lender in immediately available funds Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is was made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in accordance with banking industry rules on interbank compensationSame Day Funds at the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii) if any Lender failed to make such payment (including, and (B) without limitation, failure to fund participations in the case respect of a payment to be made by the Borrowerany Letter of Credit or Swing Line Loan), the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall forthwith on demand pay such interest to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the same or an overlapping period, period from the date such amount was made available by the Administrative Agent shall promptly remit to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid late payment) shall constitute such Lender’s Loan included in such the applicable Borrowing. Any payment by If such Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit or Swing Line Loan) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be without deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice to any claim rights which the Administrative Agent or the Borrower may have against any Lender as a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which result of any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to default by such Lender or such L/C Issuer, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationhereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable manifest error.
(d) 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 II2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 4 or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment 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.
(e) The obligations of the Lenders hereunder to make Loans, Loans and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) Swing Line Loans are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, Loan or purchase its participation or to make its payment under Section 10.04(c)participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such LenderLxxxxx’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 2:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 2:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If . Except as otherwise specifically provided for in this Agreement, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Revolving Borrowing of Eurodollar Rate Loans (or, in the case of any Revolving Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Revolving Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Revolving Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Revolving Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Revolving Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate such Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Revolving Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Revolving Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersIssuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C IssuersIssuer, 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 the L/C Issuer, 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 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 (cSection 2.12(b) shall be conclusive, absent demonstrable manifest error.
(dc) 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 Credit Extension 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.
(ed) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c11.04(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 10.04(c11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c11.04(c).
(fe) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(gf) Except as to the extent otherwise provided herein: (i) each Revolving Borrowing shall be made from the Lenders, whenever any each payment received of fees under Section 2.09 and Sections 2.03(h) and (i) shall be made for account of the Lenders, and each termination or reduction of the amount of the Revolving Facility shall be applied to the respective Revolving Commitments of the Lenders, pro rata according to the amounts of their respective Revolving Commitments; (ii) each Revolving Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Revolving Commitments (in the case of the making of Revolving Loans) or their respective Loans that are to be included in such Revolving Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Administrative Agent under this Agreement or any Borrower shall be made for account of the other Loan Documents is insufficient to pay Lenders pro rata in full all accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each payment of interest on Loans by the Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lenderrespective Lenders.
Appears in 1 contract
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by or on account of any obligation of the Borrower hereunder shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff, except with respect to Taxes as provided in Section 3.01. Except as otherwise expressly provided herein, all payments by or on account of any obligation of the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, Agent at the applicable Administrative Agent’s Office Agent Account in Dollars (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any Except to the extent otherwise provided herein, the Loans, each payment to be made by or prepayment of principal of the Borrower shall come due Loans, each payment of interest on a day the Loans and each other than a Business Day, payment hereunder shall be made on allocated among the next following Business Day, and such extension Lenders pro rata in accordance with their Ratable Shares of time shall be reflected in computing interest or fees, as the case may be; Loans (provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans the Borrower makes an election pursuant to be made in the next succeeding calendar monthSection 2.11(j), such payment shall be made allocated to the Lenders holding Loans of the Type so prepaid pro rata in accordance with their Ratable Shares of the Loans of such Type). The Administrative Agent agrees to forward to the Lenders such principal, interest and other payments on the immediately preceding same Business Day as such amounts are received, collected or applied by the Administrative Agent from the Borrower, unless the Administrative Agent receives such amounts after 11:00 a.m., in which case such payments may be forwarded by the Administrative Agent to the Lenders on the next Business Day.
(ic) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time date of any Borrowing Loan that such Lender will not make available to the Administrative Agent such Lender’s share Applicable Percentage of such BorrowingLoan, the Administrative Agent may assume that such Lender has made such share Applicable Percentage of such Loan available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share Applicable Percentage of the applicable Borrowing such Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (Ai) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, compensation and (Bii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate LoansFloating Rate. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share Applicable Percentage of the applicable Borrowing Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowingborrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(iid) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such paymentpayment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date in accordance herewith and the Administrative Agent may, in reliance upon such assumption, distribute cause to be distributed to each Lender on such due date an amount equal to the Appropriate Lenders or amount then due such Lender. If and to the applicable L/C Issuers, as the case may be, the amount due. In such event, if extent the Borrower has shall not in fact have so made such paymentpayment in full to the Administrative Agent, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally agrees to Lender shall repay to the Administrative Agent forthwith on demand the such amount so distributed to such Lender or such L/C Issuer, in immediately available funds together 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, thereon at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the date such amount is distributed to such Lender to but excluding the date such Lender or the Borrower repays such amount to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause subsection (cd) shall be conclusive, conclusive absent demonstrable manifest error.
(de) Except as expressly set forth herein, if any payment to be made by or on account of any obligation of the Borrower or the date for the performance of any covenant shall come due on a day other than a Business Day, payment or performance, as applicable, shall be made on the next following Business Day, and, for payments, such extension of time shall be reflected in computing interest.
(f) Nothing herein shall be deemed to obligate a Lender to obtain the funds for its Ratable Share of the Loans in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Ratable Share of the Loans in any particular place or manner.
(g) 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 Credit Extension credit extension 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.
(eh) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).
(fi) Nothing herein All payments (including prepayments and any other amounts received hereunder other than payments and amounts received in connection with the exercise of the Agents’ and each Applicable Lenders’ rights after an Event of Default) made by the Borrower to Administrative Agent or any Lender under any Loan Document shall be deemed applied to obligate amounts then due and payable in the following order: (i) to any expenses and indemnities payable by the Borrower to any Agent under any Loan Document, (ii) ratably to any expenses and indemnities payable by the Borrower to any Lender to obtain the funds for under any Loan in Document, (iii) subject to Section 2.11(j), to any particular place or manner or accrued and unpaid interest and fees due under this Agreement, (iv) subject to constitute a representation by Section 2.11(j), to principal payments on the outstanding Initial Loans, Revolving Loans and/or Additional Loans (if any) pro rata and (v) to the extent of any Lender that it has obtained or will obtain excess, to the funds for any payment of all other Obligations under the Loan in any particular place or mannerDocuments.
(gj) Except as otherwise provided hereinNotwithstanding anything herein to the contrary, whenever any payment received by the Administrative Agent under nothing in this Agreement or any other Loan Document shall apply to or restrict (i) the payment of the Commitment Fee, other fee or interest payable with respect to any Initial Loans, Revolving Commitment, Revolving Loans, Additional Loan Documents is insufficient Commitments and/or Additional Loans, as applicable, (ii) the reduction or termination of the Revolving Commitments and/or Additional Loan Commitments pursuant to pay Section 2.08 (and payments of Commitment Fees due on the date of any such termination) or (iii) the prepayment of any Initial Loans, Revolving Loans and/or Additional Loans (if any), whether in full all amounts due and payable or in part, pursuant to Section 2.04, Section 2.05 or Section 2.09(a), in each case, on a non-pro rata basis with respect to any other Type of Loans as the Borrower shall elect; provided that if the Borrower does not make such election prior to or concurrently with delivering a Voluntary Prepayment Notice, if applicable, any such payments will be applied on a pro rata basis to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any dateoutstanding Initial Loans, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may Revolving Loans and/or Additional Loans (to the fullest extent permitted by mandatory provisions of applicable Lawif any), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Appears in 1 contract
Samples: Margin Loan Agreement and Collateral Account Control Agreement (Liberty Broadband Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower Borrowers of principal, interest, fees and other Obligations shall be made (i) with respect to the Initial Term Loans, US Revolving Credit Commitments and US Letters of Credit, in Dollars, and (ii) with respect to the Multicurrency Revolving Credit Commitments and Multicurrency Letters of Credit, in the applicable Approved Currency in which such Obligations are denominated, without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower Borrowers 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds immediately available funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency2:00 p.m., in each case Local Time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Applicable Lending Office. All payments received by the Administrative Agent on the due date after 2:00 p.m., Local Time, shall (i) after 3:00 p.m. New York City time, in the case sole discretion of payments in Dollars or (iithe Administrative Agent) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Other than as specified herein, all payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in Dollars.
(b) If any payment to be made by the Borrower Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(ic) Unless the Borrower Representative or any Lender has notified the Administrative Agent shall have received notice from a Lender Agent, prior to the proposed time of date any Borrowing that such Lender will not make available payment is required to be made by it (or the ILG Borrower) to the Administrative Agent such Lender’s share of such Borrowinghereunder, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by or such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowermay be, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made or such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersLender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the amount duePerson entitled thereto. In If and to the extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the applicable Borrower failed to make such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, as the case may be, severally Lender agrees to repay pay to the Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender or such L/C Issuer, in immediately available funds funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Administrative Agent, Agent in immediately available funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationcompensation plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to similarly situated borrowers in connection with the foregoing; it being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to similarly situated borrowers in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the applicable Borrower, and the applicable Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower Representative with respect to any amount owing under this clause (cSection 2.12(c) shall be conclusive, absent demonstrable error.
(d) 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 applicable Borrower by the Administrative Agent because the conditions to the applicable Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to make payments pursuant to Section 9.07 and to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, Loan or to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c)or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.038.04. If the Administrative Agent receives funds for application to the Loan Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law)may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Loan Obligations then owing to such Lender.
Appears in 1 contract
Samples: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Payments Generally. (a) Except as otherwise provided herein, including pursuant to Section 3.01, all All payments to be made by the Borrower (whether of principal or interest) shall be made without condition or deduction for any counterclaimdeemed credited to Borrower’s account only if received by 2:00 p.m. (New York time) on a Business Day; otherwise, defense, recoupment or setoff. Except as otherwise expressly provided herein, 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 (or, in the case of principal of or interest on any Obligations denominated in, and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent on the due date (i) after 3:00 p.m. New York City time, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrueDay.
(b) If any payment to be made by Each Facility A Lender will make the amount of each of its Facility A Loans, and the Borrower shall come due on a day other than a Business Daywill make available the applicable amount of its Additional Equity Requirement, payment shall be made on available to the next following Business Day, and such extension of time shall be reflected in computing interest Agent (or feesthe Servicer, as the case may be; provided that, if ) prior to 2:00 p.m. (New York time) on the Business Day on which such extension would cause payment of interest on or principal of Eurocurrency Rate Loans Facility A Loan is to be made in the next succeeding calendar monthhereunder, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C IssuersServicer, as the case may be, ) shall make the amount due. In funds so received from the Facility A Lenders and the Additional Equity Requirement available to Borrower on such event, date; provided that if such funds are received by the Borrower has not in fact made such payment, then each of the Appropriate Lenders Agent (or the applicable L/C IssuersServicer, as the case may be) after such time, severally agrees then such funds shall be made available to repay Borrower no later than 12:00 p.m. (New York time) on the immediately succeeding Business Day. Notwithstanding anything to the Administrative Agent forthwith contrary in this Agreement (i) interest will accrue on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day Facility A Lender’s Facility A Loans from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined Lender’s funds are received by the Administrative Agent in accordance with banking industry rules (or Servicer, as the case may be) if received by 2:00 p.m. (New York time) on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (c) shall be conclusive, absent demonstrable error.
(d) 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 IIrequired date, and if such funds are received on such Business Day after such time then interest shall accrue thereon from the immediately succeeding Business Day, or if such funds are not received on such Business Day then interest shall accrue thereon only after such funds have been received by the Agent (or the Servicer, as the case may be) and made available to the Borrower by Borrower, and (ii) the Administrative Agent because the conditions interest payments payable to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereofFacility A Lenders under Sections 21.1 and 21.2 shall be adjusted, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loansif necessary, to fund participations in Letters take into account accrual of Credit and to make payments pursuant to Section 10.04(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 10.04(c) interest on any date required hereunder shall not relieve any other a funding by a Facility A Lender of its corresponding obligation to do so Facility A Loan commencing on such date, and no Lender shall be responsible for a date other than the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents date on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are Facility A Loan was required to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lendermade hereunder.
Appears in 1 contract
Samples: Construction Loan Agreement (Maui Land & Pineapple Co Inc)
Payments Generally. (a) Except as otherwise provided hereinAll payments under this Agreement or on the Notes shall be made in immediately available funds to the Agent at its Payment Office for the ratable benefit of the Banks, including pursuant to Section 3.01in accordance with their respective Commitment Proportions, all payments not later than 1:00 p.m. (New York City time) on the relevant dates specified above (each such payment made after such time on such date is to be deemed to have been made on the next succeeding Banking Day). The Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrower with the Agent. The Borrower shall, at the time of making each payment under this Agreement or the Notes, specify to the Agent the principal or other amount payable by the Borrower shall be made without condition under this Agreement or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders Notes to which such payment is owedto be applied; provided, at the applicable Administrative Agent’s Office in Dollars (orhowever, that in the case event that the Borrower fails to so specify, or if a Default or an Event of principal of or interest on any Obligations denominated inDefault has occurred and is continuing, the Agent and to be paid in, an Alternative Currency, such Alternative Currency) and in Same Day Funds not later than 3:00 p.m. New York City time in case of the Obligations denominated in Dollars or 12:00 noon New York City time in the case of Obligations denominated in an Alternative Currency, in each case on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of Banks shall apply such payment as they may elect in like funds as received by wire transfer to such Lender’s applicable Lending Officetheir sole discretion. All payments received by the Administrative Agent on If the due date (i) after 3:00 p.m. New York City timeof any payment under this Agreement or the Notes would otherwise fall on a day which is not a Banking Day, in the case of payments in Dollars or (ii) after 12:00 noon New York City time in the case of payments in an Alternative Currency, such date shall in each case be deemed received on extended to the next succeeding Business Banking Day and interest shall be payable for any applicable interest or fee shall continue to accrueprincipal so extended for the period of such extension.
(b) If any payment to be All payments made by the Borrower shall come due on a day under this Agreement, the Notes or the other than a Business Day, payment Facility Documents shall be made free and clear of; and without deduction or withholding for or on account Of; Taxes. If any Taxes are withheld from any amounts payable to any Bank hereunder or under the next following Business Dayother Facility Documents, and the amounts so payable to such extension of time Bank shall be reflected in computing increased to the extent necessary to yield to such Bank (after payment of all Taxes) interest or fees, as any such other amounts payable hereunder at the case may be; provided that, if such extension would cause payment of interest on rates or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(i) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowingamounts specified in this Agreement, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender Notes and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate as reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus other Facility Documents. Whenever any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made Taxes are payable by the Borrower, as promptly as possible thereafter, the interest rate applicable Borrower shall send to Base Rate Loanssuch Bank a copy of an original official receipt received by the Borrower showing payment thereof. If the Borrower and such Lender shall fails to pay such interest any Taxes when due to the Administrative Agent for the same appropriate taxing authority or an overlapping period, the Administrative Agent shall promptly fails to remit to the Borrower Banks the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agentrequired receipts or other required documentary evidence, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim indemnify the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuers, 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 L/C Issuer, 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 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 (c) shall be conclusive, absent demonstrable error.
(d) If any Lender makes available to the Administrative Agent funds Banks for any Loan to be made incremental taxes, interest or penalties that may become payable by any Bank as a result of any 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 Credit Extension 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.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not jointfailure. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder agreements in this subsection shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for survive the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 10.04(c).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Except as otherwise provided herein, whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect termination of this Agreement and the other Loan Facility Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations payment of the Loan Parties under Notes and all other amounts payable hereunder or thereunder.
(c) Each Bank and the Agent agrees that if it subsequently recovers or receives a refund or credit in respect of the Loan Documents Taxes paid by the Borrower under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and subsection (b) such Bank or the Outstanding Amount Agent shall promptly repay the Borrower such refund or credit net of all L/C Obligations outstanding at such timeout-of-pocket expenses related thereto; provided, in repayment or prepayment however, that if, due to subsequent adjustment of such of Taxes, such Bank or the outstanding Loans Agent is required to repay such amount to the relevant taxing authority, the Borrower agrees to repay such Bank or other Obligations then owing the Agent the amount required to such Lenderbe repaid.
Appears in 1 contract
