Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section. (b) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders. (c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension. (d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower. (e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (CorePoint Lodging Inc.), Credit Agreement (CorePoint Lodging Inc.), Credit Agreement (CorePoint Lodging Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower Borrowers from the Lenders hereunder and hereunder, each payment by the Borrower Borrowers on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Delayed Draw Term Loan Percentages, Incremental Term Loan Percentages, USD Revolving Credit Percentages or Multicurrency Revolving Credit Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Parent Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Term Loan Lenders. The amount of each principal prepayment of the Term Loans shall be allocated applied to reduce the then remaining installments of the Tranche A Term Loans and Incremental Term Loans, as provided in such Section)the case may be, pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the any Revolving Credit Loans under any Revolving Credit Facility shall be made pro rata according to the respective outstanding principal amounts of the such Revolving Credit Loans under such Revolving Credit Facility then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Credit Lenders in under such Class pro rata according to the respective Revolving Percentages of the relevant LendersCredit Facility.
(cd) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City timeLocal Time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars (or, in the case of any payment of principal or interest on any Multicurrency Revolving Credit Loans denominated in an Optional Currency, the applicable Optional Currency) and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the respective Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.18(e) shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the applicable Borrower, and, if so recovered, such amount shall no longer be deemed outstanding hereunder.
(ef) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the respective Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(e), 2.18(f), 2.20(g), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 3 contracts
Samples: Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp)
Pro Rata Treatment and Payments. (a) Each Except as provided in subsection 2.16, each payment (other than optional prepayments) of principal or interest in respect of the Loans shall be made pro rata according to the amounts then due and owing to the respective Lenders.
(b) Except as provided in subsection 2.16, each borrowing by the Borrower of Revolving Credit Loans from the Lenders hereunder and each shall be made pro rata according to the Funding Commitment Percentages of the Lenders in effect on the date of such borrowing. Each payment by the Borrower on account of any commitment facility fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any hereunder and any reduction of the Revolving Credit Commitments of the Lenders shall be made allocated by the Administrative Agent among the Lenders pro rata according to the respective Revolving Credit Commitment Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated Lenders. Except as provided in such Section.
(b) Each subsection 2.16, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according due and owing to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) . All payments (including prepayments) to be made by the Borrower hereunderhereunder in respect of amounts denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be made without setoff set off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding OfficeAdministrative Agent's office specified in subsection 13.2, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans or Multicurrency Loans) 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. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of 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) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.
(c) Each borrowing of Multicurrency Loans by the Borrower shall be made, and any reduction of the Multicurrency Commitments shall be allocated by the Administrative Agent, pro rata according to the Multicurrency Commitment Percentages of the Multicurrency Lenders. In Each payment (including each prepayment) by the case of any extension of any payment Borrower on account of principal pursuant of and interest on Multicurrency Loans shall be allocated by the Administrative Agent pro rata according to the preceding two sentencesrespective principal amounts of the Multicurrency Loans then due and owing by the Borrower to each Multicurrency Lender. All payments (including prepayments) to be made by the Borrower on account of Multicurrency Loans hereunder, interest thereon whether on account of principal, interest, fees or otherwise, shall be payable made without set-off or counterclaim and shall be made at or before the payment time for the currency of such Multicurrency Loan from time to time specified by the Administrative Agent by notice to the Multicurrency Lenders and the Borrower, on the due date thereof to the Administrative Agent, for the account of the Multicurrency Lenders, at the then applicable rate during payment office for the currency of such extensionMulticurrency Loan from time to time specified by the Administrative Agent by notice to the Multicurrency Lenders and the Borrower, in the currency of such Multicurrency Loan and in immediately available funds. The Administrative Agent shall distribute such payments to the Multicurrency Lenders entitled to receive the same promptly upon receipt in like funds as received.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans or CAF Advances denominated in Dollars) and (ii) a rate determined by the Administrative Agent Agent's reasonable estimate of its average daily cost of funds (in accordance with banking industry rules on interbank compensationthe case of a borrowing of Multicurrency Loans or CAF Advances denominated in a currency other than Dollars), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at equal to (i) the rate per annum applicable to ABR LoansLoans hereunder (in the case of a borrowing of Revolving Credit Loans or CAF Advances or CAF Advances denominated in Dollars) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds plus the Applicable Margin applicable to Multicurrency Loans (in the case of a borrowing of Multicurrency Loans or CAF Advances denominated in a currency other than Dollars), on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Boston Scientific Corp), Credit Agreement (Boston Scientific Corp), Credit Agreement (Boston Scientific Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages of Credit Percentages, as the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages case may be, of the relevant Lenders except Lenders.
(b) Except as otherwise provided in Section 2.9(a) or Section 2.25, (i) to each payment (including each prepayment) by the extent that this Agreement provides for reductions to be disproportionately allocated to a group Borrower on account of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction principal of and interest on the Term Loans shall be allocated to among the Lenders in holding such Class Term Loans pro rata according to based on the respective Revolving Percentages principal amount of the relevant Lenders such Term Loans held by such Lenders, and (ii) reductions pursuant to Section 2.9(c), which the amount of each principal prepayment of the Term Loans shall be allocated as provided in applied first, to the four immediately succeeding installments of such SectionTerm Loans and, second, to the remaining installments of such Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be allocated as provided in made to the Issuing Lender that issued such Section)Letters of Credit.
(d) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made, first, to Base Rate Loans under such Facility and, second, to Eurodollar Loans under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the date of such payment on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lendersamount paid.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. Any payment made by the Borrower after 12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average greater of (i) the Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.16(f), 2.16(g), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 3 contracts
Samples: Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx), Credit Agreement (Cinemark Usa Inc /Tx)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Percentages, Incremental Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except Lenders.
(ib) to Each scheduled payment by the extent that this Agreement provides for reductions to be disproportionately allocated to a group Borrower on account of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction principal of and interest on the Term Loans of any Facility shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the Term Loans of such Facility then held by the relevant Lenders Term Lenders, and (ii) reductions each prepayment by the Borrower pursuant to Section 2.9(c), which 2.10 or 2.11 on account of principal of and interest on the Term Loans shall be allocated as made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans, pro rata based upon the then remaining principal amounts thereof; provided that any prepayments in such Sectionrespect of the principal of and interest on the Term Loans made by the Borrower pursuant to Section 2.10 shall be applied in forward chronological order of scheduled installments in accordance with the then outstanding amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City Charlotte time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Mq Associates Inc), Credit Agreement (Mq Associates Inc), Credit Agreement (Mq Associates Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the a Borrower from the Tranche 1 Revolving Lenders hereunder and hereunder, each payment by the a Borrower on account of any commitment fee Facility Fee and any Acceptance Fee payable in respect of the Tranche 1 Revolving Commitments and any reduction of the Tranche 1 Revolving Commitments shall be made pro rata according to the respective Tranche 1 Revolving Percentages of the Tranche 1 Revolving Lenders. Any Each borrowing by a Borrower from the Tranche 2 Revolving Lenders hereunder, each payment by a Borrower on account of any Facility Fee payable in respect of the Tranche 2 Revolving Commitments and any reduction of the Tranche 2 Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche 2 Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Tranche 2 Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the a Borrower on account of principal of and interest on the US Revolving Loans, Canadian Revolving Loans or Euro Revolving Loans, as the case may be, shall be made to the relevant Revolving Lenders on a pro rata basis according to the respective outstanding principal amounts of the relevant Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the applicable Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the relevant Funding Office, in US Dollars (with respect to Obligations denominated in US Dollars), Euros (with respect to Obligations denominated in Euros) or Canadian Dollars (with respect to Obligations denominated in Canadian Dollars), as the case may be, and in immediately available funds; provided, that if any event referred to in Section 8(h) or 8(i) shall occur or an acceleration of the maturity of the Loans pursuant to Section 8 shall occur, all Obligations denominated in Euros or Canadian Dollars shall be converted to US Dollars based on the then US Dollar Equivalent thereof (except for then undrawn and unexpired amounts of the outstanding Letters of Credit and except that any Bankers’ Acceptance shall only be converted to US Dollars at the end of the Contract Period therefor). Receipt by the Administrative Agent from a Borrower of funds pursuant to this Agreement, as principal, interest, fees or otherwise, shall be deemed to be receipt of such funds by the relevant Lenders. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans or the EURIBOR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan or a EURIBOR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereonthereon (i) in the case of any such amount in US Dollars, at a rate per annum equal to the greater of (ix) the daily average Federal Funds Effective Rate and (iiy) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available or (ii) in the case of any such amount in Euros or Canadian Dollars, at a rate per annum determined by the Administrative Agent (such determination to be conclusive and binding on such Lender) in accordance with the Administrative Agent’s cost of funding the amount of such payment, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, US Base Rate Loans or Canadian Prime Rate Loans, as the case may be, on demand, from the relevant Borrower. Nothing in this paragraph shall be deemed to relieve any Lender from its obligations to fulfill its Revolving Commitments in accordance with the provisions hereof or to prejudice any rights which a Borrower has against any Lender as a result of any default by such Lender hereunder.
(e) Unless the Administrative Agent shall have been notified in writing by the a Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the relevant Administrative Agent by the relevant Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon (i) in the case of any such amount in US Dollars, at the a rate per annum equal to the greater of (x) the daily average Federal Funds Effective RateRate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of any such amount in Euros or Canadian Dollars, at a rate per annum determined by the Administrative Agent (such determination to be conclusive and binding on such Lender) in accordance with the Administrative Agent’s cost of funding the amount of such payment. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the a Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Domtar CORP), Credit Agreement (Domtar CORP), Credit Agreement (Domtar CORP)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Loans by the Borrower from the Revolving Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the respective Revolving Percentages Commitments then held by the Revolving Lenders. Each payment by the Borrower on account of the relevant Lenders except (i) any commitment fee or any letter of credit fee shall be paid ratably to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Revolving Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionentitled thereto.
(b) Each payment (including each prepayment) prepayment by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Revolving Lenders. All repayments of principal of the Revolving Loans at stated maturity or upon acceleration shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the matured or accelerated Revolving Loans then held by the relevant Revolving Lenders, except to . All payments of interest in respect of the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment loans shall be allocated to the Lenders in such Class pro rata according to the respective outstanding interest payable then owed to the relevant Revolving Percentages Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise but excluding any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16 and Section 9.05) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent and the Issuing Bank hereunder (including amounts owed under Section 2.09(b) or 9.04(c)), (2) second, to the funding of any Revolving Loan or LC Disbursement required by this Agreement, as determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the relevant LendersDefaulting Lender under this Agreement, (4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Revolving Loans, such payment shall be applied solely to prepay the Revolving Loans of all non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to being applied to the prepayment of any Revolving Loan of any Defaulting Lender.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time (or as specified in the next sentence in the case of Loans in an Alternative Currency), on the date when due. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and interest on Loans in an Alternative Currency shall be made on the dates specified herein for the pro rata account of the relevant Lenders to which such payment is owed, in such Alternative Currency and in immediately available funds not later than the Applicable Time specified by the Administrative Agent to the Borrower by the same time at least one Business Day prior to the date when due. All payments received by the Administrative Agent (i) after 2:00 p.m., New York City time, on in the due date thereof to case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the account of Administrative Agent at its offices at 0000 Xxxxxx Xxxxxx, Houston, Texas except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.04 shall be made directly to the Lenders, at the Funding Office, in Dollars and in immediately available fundsPersons entitled thereto. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing If at any time insufficient funds are received by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date thereforto pay fully all amounts of principal, interest and fees then due hereunder, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph funds shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available applied (subject to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent to hold and apply amounts to be paid to a Defaulting Lender in accordance with Section 2.15(b)) (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. To the extent necessary, the Administrative Agent shall enter into foreign currency exchange transactions on customary terms to effect any such ratable payment and the payments made by the Administrative Agent following such transactions shall be deemed to be payments made by or on behalf of the Borrower hereunder.
(e) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective 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 against as consideration for the Borrowerassignment of or sale of a participation in any of its Loans to any assignee or participant.
Appears in 3 contracts
Samples: Credit Agreement (QVC Inc), Credit Agreement (Affiliate Investment, Inc.), Credit Agreement (Liberty Media Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments shall be made pro rata according to the respective Tranche A Term Percentages, Tranche B Term Percentages, Tranche C Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction Each payment (other than prepayments) in respect of principal or interest in respect of the Revolving Commitments Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or New Term Loans and each payment in respect of the Lenders fees payable hereunder shall be made applied to the amounts of such obligations owing to the Tranche A Term Lenders, Tranche B Term Lenders, Tranche C Term Lenders or New Term Lenders, as applicable, pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class such Lenders, other than payments pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii2.11(c) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionor 2.24.
(b) Each mandatory prepayment of the Term Loans shall be allocated between the Tranche A Term Facility, the Tranche B Term Facility, the Tranche C Term Facility and any New Facility comprising Term Loans, if any, pro rata except as affected by the opt-out provision under Section 2.12(e). Each optional prepayment and mandatory prepayment of the Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or New Term Loans shall be applied to the remaining installments thereof as specified by the Borrower. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepaymentprepayments) to be made by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, except . Each payment (including prepayments) to be made by the extent that this Agreement provides that different Classes Borrower on account of principal of and interest on the New Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Revolving Loans then held by the New Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, deduction or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Office, in Dollars and in immediately available funds. Any payment received by the Administrative Agent after 2:00 P.M., New York City time may be considered received on the next Business Day in the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, Agent on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive presumptively correct in the absence of manifest demonstrable error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall give notice of such fact to the Borrower and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Defaulting Lender.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments shall be made pro rata according to the respective Tranche A Term Percentages, Tranche B Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction Each payment (other than prepayments) in respect of principal or interest in respect of the Revolving Commitments Tranche A Term Loans, Tranche B Term Loans or New Term Loans and each payment in respect of the Lenders fees payable hereunder shall be made applied to the amounts of such obligations owing to the Tranche A Term Lenders, Tranche B Term Lenders or New Term Lenders, as applicable, pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class such Lenders, other than payments pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii2.11(c) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionor 2.24.
(b) Each mandatory prepayment of the Term Loans shall be allocated between the Tranche A Term Facility, the Tranche B Term Facility and any New Facility comprising Term Loans, if any, pro rata except as affected by the opt-out provision under Section 2.12(e). Each optional prepayment and mandatory prepayment of the Tranche A Term Loans, Tranche B Term Loans or New Term Loans shall be applied to the remaining installments thereof as specified by the Borrower. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepaymentprepayments) to be made by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, except . Each payment (including prepayments) to be made by the extent that this Agreement provides that different Classes Borrower on account of principal of and interest on the New Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Revolving Loans then held by the New Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, deduction or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Office, in Dollars and in immediately available funds. Any payment received by the Administrative Agent after 2:00 P.M., New York City time may be considered received on the next Business Day in the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, Agent on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive presumptively correct in the absence of manifest demonstrable error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall give notice of such fact to the Borrower and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Defaulting Lender.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentmandatory prepayment made pursuant to Section 4.2) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (Term Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans pro rata based upon the then remaining principal amount thereof. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed, except for that optional prepayments of the Term Loans made pursuant to Section 2.9(c), which 4.1 shall be allocated as provided in such Section). applied to the installments thereof at the Borrower’s discretion.
(c) Each payment (including each mandatory prepayment made pursuant to Section 4.2) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.710.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, compensation for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Term Lenders and shall be applied to the installments of the Term Loans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loans held by the Term Lenders of such Class. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of applicable Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments) to be made by any Borrower hereunder on account of principal or interest on the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to ABR Loansthe greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent, on demand, from the applicable Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the greater of (i) the daily average Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Samples: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments shall be made pro rata according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction Each payment (other than prepayments) in respect of principal or interest in respect of the Revolving Commitments Term Loans or New Term Loans and each payment in respect of the Lenders fees payable hereunder shall be made applied to the amounts of such obligations owing to the Term Lenders or New Term Lenders, as applicable, pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class such Lenders, other than payments pursuant to Section 2.62.11(b) or 2.24.
(b) Each mandatory prepayment of the Term Loans shall be allocated between each Term Facility and any New Facility comprising Term Loans, in which case each reduction if any, pro rata, except as affected by the opt-out provision under Section 2.12(e). Each optional prepayment of the Term Loans shall be allocated between the Facilities as directed by the Borrower. Each optional prepayment of the Term Loans or New Term Loans shall be allocated to the Lenders in holding such Class Loans on a pro rata according basis, based on the principal amount of such Loans held by such Lender of the Term Loans or New Term Loans applied to the respective Revolving Percentages of remaining installments thereof as specified by the relevant Lenders and Borrower (ii) reductions except for prepayments pursuant to Section 2.9(c), which 2.11(b) or Section 2.24) and each mandatory prepayment of the Term Loans or New Term Loans shall be allocated as provided to the Lenders holding such Loans on a pro rata basis, based on the principal amount of such Loans held by such Lender of the Term Loans or New Term Loans and shall be applied to the remaining installments thereof in such Sectiondirect order of maturity. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(bc) Each payment (including each prepaymentprepayments) to be made by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, except . Each payment (including prepayments) to be made by the extent that this Agreement provides that different Classes Borrower on account of principal of and interest on the New Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Revolving Loans then held by the New Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Bank that issued such Letter of Credit.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, deduction or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Office, in Dollars and in immediately available funds. Any payment received by the Administrative Agent after 2:00 P.M., New York City time may be considered received on the next Business Day in the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, Agent on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive presumptively correct in the absence of manifest demonstrable error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall give notice of such fact to the Borrower and the Administrative Agent shall also be entitled to recover such amount with interest thereon thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Defaulting Lender.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Engility Holdings, Inc.), Credit Agreement (Engility Holdings, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by of Revolving Loans and any reduction of the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee Revolving Commitments shall be made pro rata according to the respective Revolving Commitment Percentages of the Lenders. Any reduction Each payment under this Agreement or any Note shall be applied, first, to any fees then due and owing by the Borrower pursuant to Section 2.3, second, to interest then due and owing in respect of the Revolving Commitments Notes of the Lenders Borrower and, third, to principal then due and owing hereunder and under the Notes of the Borrower. Each payment on account of any fees pursuant to Section 2.3 shall be made pro rata according in accordance with the respective amounts due and owing (except as to the respective Revolving Percentages portion of the relevant Lenders except (i) Standby Letter of Credit Fee or Trade Letter of Credit Fee retained by the applicable Issuing Lender, the Issuing Lender Fees, the Fronting Fee and fees payable to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(cAdministrative Agent), which shall be allocated as provided in such Section.
(b) . Each payment (including each prepaymentother than prepayments) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding amounts due and owing in accordance with Section 2.5(a) hereof. Each optional prepayment on account of principal amounts of the Revolving Loans then held by shall be applied to such of the Loans as the Borrower may designate (to be applied pro rata among the Lenders); provided, except that prepayments made pursuant to Section 2.13 shall be applied in accordance with such section. Each mandatory prepayment on account of principal of the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, be applied in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) accordance with Section 2.5(b). All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, interest and fees or otherwise, shall be made without setoff defense, set-off or counterclaim (except as provided in Section 2.16(b)) and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, Agent for the account of the Lenders, Lenders at the Funding Office, Administrative Agent's office specified on Schedule 9.2 in Dollars and in immediately available fundsfunds not later than 1:00 P.M. (Charlotte, North Carolina time) on the date when due. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled thereto promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar LIBOR Rate Loans) 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. If any payment on a Eurodollar LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Dollar Tree Stores Inc), Credit Agreement (Dollar Tree Stores Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments Term Lenders. The amount of each mandatory principal prepayment of the Term Loans pursuant to Section 2.9(c), which 2.11 shall be allocated applied to reduce the then remaining installments of the Term Loans and Incremental Term Loans, as provided the case may be, pro rata based upon the respective then remaining principal amounts thereof. The amount of each optional prepayment of the Term Loans pursuant to Section 2.10 shall be applied to reduce the then remaining installments of the Term Loans and Incremental Term Loans, as the case may be, in such Section)order as the Borrower may direct. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(c), 2.7(d), 2.17(e), 2.17(f), 2.19(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lenders or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Lenders hereunder and hereunder, each payment by the Borrower Borrowers on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages in respect of the Lenders. Any Revolving Credit Loans and any reduction of the Revolving Credit Commitments of the Lenders shall be made pro rata according to the respective Revolving Credit Percentages of the relevant Lenders except (i) Lenders. Each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective amounts then due and owing to the Lenders.
(i) Each payment (including each prepayment) by the Borrowers on account of principal of and interest on the Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which Credit Loans shall be allocated as provided in such Sectionamong the Lenders pro rata based on the outstanding principal amounts of the Revolving Credit Loans then held by the Lenders.
(bii) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans Term Loans, shall be made allocated among the Lenders pro rata according to based on the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders, except to . The amount of each principal prepayment of the extent that this Agreement provides that different Classes of Revolving Term Loans shall have different Applicable Marginsbe applied to reduce the then remaining installments of the Term Loans in direct order (or, in which the case each payment shall be allocated to of Incremental Term Loans, as specified in the Lenders in Incremental Term Loan Amendment for such Class pro rata according to the respective Revolving Percentages Incremental Term Loans). Amounts prepaid on account of the relevant LendersTerm Loans may not be reborrowed.
(c) The application of any payment of Loans (including mandatory prepayments but excluding optional prepayments) shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. The application of optional prepayments shall be as directed by the Borrower, subject to clause (d)(y) below in the case of Revolving Credit Loans denominated in any Alternative Currency. Each payment of the Loans (except in the case of Base Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(d) (x) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal of or interest on any Revolving Credit Loan denominated in any Alternative Currency), shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding applicable Payment Office, in Dollars and in immediately available funds and (y) all payments (including prepayments) to be made by the Borrowers hereunder on account of principal of or interest on any Revolving Credit Loan denominated in any Alternative Currency shall be made without setoff or counterclaim and shall be made prior to the Specified Time applicable to the applicable Alternative Currency for the applicable due date thereof to the Administrative Agent, for the account of the Revolving Credit Lenders, at the applicable Payment Office, in the applicable Alternative Currency and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower applicable Borrowers a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective daily average NYFRB Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such LenderXxxxxx’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Base Rate Loans, on demand, from the Borrowerapplicable Borrowers.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective NYFRB Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.13(e), 2.13(f), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received by the Administrative Agent or the Issuing Lender for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Samples: Revolving Refinancing Amendment (Sba Communications Corp), 2018 Refinancing Amendment (Sba Communications Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, subject to Section 2.14, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Term Percentages and DSRA L/C Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Term Lenders. The amount of each principal prepayment of the Term Loans shall be allocated as provided in such Section)applied to reduce the then remaining installments of the Term Loans, pro rata to remaining scheduled amortization payments and the payments due at final maturity of the Term Loans. Amounts repaid or prepaid on account of the Term Loans may not be re-borrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving DSRA L/C Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving DSRA L/C Loans then held by the DSRA L/C Lenders, except . Any DSRA L/C Loans prepaid pursuant to Section 2.7(f) may not be re-borrowed. Any DSRA L/C Loans repaid or prepaid other than pursuant to Section 2.7(f) may be re-borrowed in accordance with the extent that terms of this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersAgreement.
(cd) All payments (including prepayments, but excluding payments made pursuant to Section 3.1(c)(i) of this Agreement) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders or any DSRA L/C Issuing Bank, at the Funding OfficeOffice (or by wire transfer to the Administrative Agent Account, unless otherwise directed in writing by the Administrative Agent), in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant DSRA L/C Issuing Bank or Lender promptly upon receipt in like funds as received, net of any amounts owing by such DSRA L/C Issuing Bank or Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages, or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except (i) Lenders. Unless otherwise expressly provided herein, all payments by the Borrower pursuant to this Agreement or any other Loan Document that are not on account of any particular Facility shall be made by the Borrower to the extent that this Agreement provides Administrative Agent for reductions to be disproportionately allocated to a group the pro rata account of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in entitled to receive such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionpayment.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders.
(except for prepayments d) Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16, so long as the Total Revolving Credit Commitments exceed $25,000,000, each Term Loan Lender may, at its option, decline up to 100% of the portion of any optional prepayment or mandatory payment applicable to the Term Loans of such Term Loan Lender; accordingly, with respect to the amount of any optional prepayment described in Section 2.9 or mandatory prepayment described in Section 2.10 that is allocated to Term Loans (such amount, the "Term Loan Prepayment Amount"), at any time when the Total Revolving Credit Commitments exceeds $25,000,000, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than five Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.9(c2.10, in lieu of applying such amount to the prepayment of Term Loans, as provided in Section 2.10(g), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable, and in any case, within two Business Days after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be allocated as provided in the form of Exhibit L, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is three Business Days after the date of the Prepayment Option Notice, the Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such SectionLender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding Term Loans in respect of which Term Loan Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"). Each payment , and such amount shall be applied to reduce the Term Loan Prepayment Amount, with respect to each Accepting Lender and (ii) the Borrower shall pay to the Administrative Agent an amount equal to the portion of interest on the Term Loan Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Revolving Credit Loans and permanent reduction of the Revolving Credit Commitments. Notwithstanding the foregoing, the Total Revolving Credit Commitments shall not be made reduced to less than $25,000,000 by operation of this paragraph (d); accordingly, if application in accordance with the preceding sentence of the aggregate amount of the Term Loan Prepayment Amount not accepted by the Accepting Lenders would reduce the Total Revolving Credit Commitments to less than $25,000,000, such excess amount will be applied to prepay the Term Loans of such non-Accepting Lenders, pro rata according to the respective outstanding principal amounts of the Revolving Loans then held Term Loan Prepayment Amount initially refused by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant non-Accepting Lenders.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If the Administrative Agent makes the amount of such Lender’s 's share of such borrowing is not made available to the Borrower and such Lender fails to make such amount available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Bear Island Finance Co Ii), Credit Agreement (Bear Island Finance Co Ii)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans (other than Swing Line Loans) by any of the Borrower Borrowers from the Lenders hereunder and shall be made, each payment by any of the Borrower Borrowers on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be made pro rata according to allocated by the respective Revolving Percentages of the Lenders. Any Administrative Agent, and any reduction of the Revolving Credit Commitments of the Lenders shall be made allocated by the Administrative Agent, pro rata according to the respective relevant Revolving Credit Commitment Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Lenders. Each payment (including each prepayment) by any of the Borrower Borrowers on account of principal of the and interest on any Revolving Credit Loans shall be made allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by any of the Borrowers on account of principal of and interest on any Tranche of Term Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of the Revolving Term Loans of such Tranche then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)respective Lenders. Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by any of the Borrower Borrowers hereunder, whether on account of principal, interest, fees fees, Reimbursement Obligations or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders holding the relevant Loans or the L/C Participants, as the case may be, at the Funding OfficeAdministrative Agent’s office specified in subsection 11.2, in Dollars or, in the case of Loans outstanding in any Designated Foreign Currency and L/C Obligations in any Designated Foreign Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, in immediately available funds. Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, in like funds as received, net received prior to the end of any amounts owing by such Lender pursuant Business Day and otherwise the Administrative Agent shall distribute such payment to Section 9.7such Lenders on the next succeeding Business Day. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, the maturity of 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. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of 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) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(db) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share Revolving Credit Commitment Percentage or Tranche B Term Loan Percentage, as the case may be, of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to any of the Borrower Borrowers in respect of such borrowing a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) in the case of Loans to be made in any Designated Foreign Currency, the rate customary in such Designated Foreign Currency for settlement of similar inter-bank obligations, or (ii) in the case of Loans to be made in Dollars, the daily average Federal Funds Effective Rate and (ii) a rate determined Rate, as quoted by the Administrative Agent Agent, in accordance with banking industry rules on interbank compensation, each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s share Revolving Credit Commitment Percentage or Tranche B Term Loan Percentage, as the case may be, of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, (x) the Administrative Agent shall notify the Parent Borrower of the failure of such Lender to make such amount available to the Administrative Agent and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to, in the case of Loans to be made in Dollars, ABR LoansLoans hereunder or, in the case of Loans to be made in any Designated Foreign Currency, the rate per annum applicable to such Loans pursuant to subsection 4.1, in either case on demand, from such Borrower and (y) then such Borrower may, without waiving or limiting any rights or remedies it may have against such Lender hereunder or under applicable law or otherwise, (i) borrow a like amount on an unsecured basis from any commercial bank for a period ending on the Borrowerdate upon which such Lender does in fact make such borrowing available, provided that at the time such borrowing is made and at all times while such amount is outstanding such Borrower would be permitted to borrow such amount pursuant to subsection 2.1 and/or (ii) take any action permitted by the following subsection 4.8(c).
(ec) Unless the Administrative Agent Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall have been notified in writing by the Borrower prior to the date of any payment due not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Parent Borrower hereunder that shall have the Borrower will not make such payment right to seek one or more Persons reasonably satisfactory to the Administrative AgentAgent and the Parent Borrower to each become a substitute Revolving Credit Lender and assume all or part of the Revolving Credit Commitment of such Defaulting Lender. In such event, the Parent Borrower, the Administrative Agent may assume that the Borrower is making and any such paymentsubstitute Revolving Credit Lender shall execute and deliver, and the Administrative Agent may, but such Defaulting Lender shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall thereupon be deemed to limit the rights of the Administrative Agent or any Lender against the Borrowerhave executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution.
Appears in 2 contracts
Samples: Credit Agreement (VWR International, Inc.), Credit Agreement (VWR International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower of Five-Year Loans, Term Loans, New Term Loans and New Term III Loans from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Five-Year Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages Five-Year Commitment Percentages, Term Percentage, New Term Percentage or New Term III Percentage, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction payment (including each prepayment) by the Borrower on account of principal of and interest on the Five-Year Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving outstanding principal amounts of the Five-Year Loans then held by the Five-Year Lenders. Each borrowing of Five-Year Loans from the Lenders hereunder, each payment by the Borrower on account of any fee hereunder and, subject to the last sentence of Section 2.4, any reduction of the Five-Year Loans of the Lenders shall be made pro rata according to the Five-Year Commitment Percentages of the relevant Lenders Lenders. Each payment by the Borrower on account of principal of and (ii) reductions pursuant to Section 2.9(c), which interest on any Borrowing of Competitive Loans shall be allocated as provided made pro rata among the Lenders participating in such Section.
(b) Borrowing according to the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving (i) Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders Term Lenders, (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving ii) New Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving New Term Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving New Term Lenders and (iii) New Term III Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Term III Loans then held by the New Term III Lenders. The amount of each principal prepayment of the (x) Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis, (y) New Term Loans shall be applied to reduce the then remaining installments of the New Term Loans on a pro rata basis and (z) New Term III Loans shall be applied to reduce the then remaining installments of the New Term III Loans on a pro rata basis. Amounts prepaid on account of Term Loans, New Term Loans and New Term III Loans may not be reborrowed.
(cb) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, recoupment or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAdministrative Agent’s office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by the Borrower to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective daily average NYFRB Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Borrower against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective NYFRB Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc), Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except (i) Lenders. Each payment of interest in respect of the Loans, each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective Revolving Percentages of amounts then due and owing to the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each prepayment (whether mandatory or optional) on account of principal of and interest on the Term Loans shall be applied, first, in direct order of maturity, to any principal repayment installments of the Term Loans that are due within twelve (12) months after the date of such prepayment, and, second, on a pro rata basis according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Each payment on account of principal of the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Credit Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive presumed correct in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such the amount that was made available pursuant to the first sentence of this Section 2.18(e) with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on the Business Day following the date of demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Laundry Systems LLC), Credit Agreement (Alliance Laundry Systems LLC)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments shall be made pro rata according to the respective Term Percentages, L/C Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction .
(b) Except as otherwise provided herein, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Commitments of the Lenders Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders except Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans (iwhether optional or mandatory) shall be applied to reduce the then remaining installments of the Term Loans in inverse order or maturity based upon the respective then remaining principal amounts thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, any prepayment of Loans shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to then outstanding Term Loans on a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages basis regardless of type. Amounts prepaid on account of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall Term Loans may not be allocated as provided in such Sectionreborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, 10:00 A.M. on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of . Any payment received by the Administrative Agent after 10:00 A.M. shall be deemed received on the next succeeding Business Day and any amounts owing by such Lender pursuant applicable interest or fee shall continue to Section 9.7accrue. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the proposed date of any borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making has made such amount available to the Administrative AgentAgent on such date in accordance with Section 2, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall and the Borrower severally agree to pay to the Administrative Agent forthwith, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to the Borrower but excluding the date of payment to the Administrative Agent, on demandat (i) in the case of a payment to be made by such Lender, such amount with interest thereon, at a rate equal to the greater of (iA) the Federal Funds Effective Rate and (iiB) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive and (ii) in the absence case of manifest error. If such Lender’s share of such borrowing is not a payment to be made available to by the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateBorrower, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, on demandthe 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, from then the Borroweramount 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.
(ef) Unless the Administrative Agent shall have been notified in writing by received notice from the Borrower prior to the date of on which any payment is due to be made by the Borrower Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment to the Administrative Agentpayment, the Administrative Agent may assume that the Borrower is making has made such payment, payment on such date in accordance herewith and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available distribute to the Lenders their respective pro rata shares or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of a corresponding amount. If such payment is not made the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, in accordance with banking industry rules on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rateinterbank compensation. Nothing herein shall be deemed to limit the rights of Administrative Agent or any Lender against any Loan Party.
(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 Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1 or Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(h) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) fund its respective Swingline Participation Amount of any Swingline Loan, and (v) make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.7.
(i) 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.
(j) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees, Overadvances and Protective Overadvances then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees, Overadvances and Protective Overadvances then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(k) If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the principal of or interest on any Loan made by it, its participation in the L/C Exposure or other obligations hereunder, as applicable (other than pursuant to a provision hereof providing for non-pro rata treatment), in excess of its Term Percentage, Revolving Percentage or L/C Percentage, as applicable, of such payment on account of the Loans or participations obtained by all of the Lenders, such Lender shall (a) notify the Administrative Agent of the receipt of such payment, and (b) within five (5) Business Days of such receipt purchase (for cash at face value) from the other Term Lenders, Revolving Lenders or L/C Lenders, as applicable (through the Administrative Agent), without recourse, such participations in the Term Loans or Revolving Loans made by them and/or participations in the L/C Exposure held by them, as applicable, or make such other adjustments as shall be equitable, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of the other Lenders in accordance with their respective Term Percentages, Revolving Percentages or L/C Percentages, as applicable; provided, however, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply). The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.18(k) may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. No documentation other than notices and the like referred to in this Section 2.18(k) shall be required to implement the terms of this Section 2.18(k). The Administrative Agent shall keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased pursuant to this Section 2.18(k) and shall in each case notify the Term Lenders, the Revolving Lenders or the L/C Lenders, as applicable, following any such purchase. The provisions of this Section 2.18(k) shall not be construed to apply to (i) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (ii) the application of Cash Collateral provided for in Section 3.10, or (iii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in any L/C Exposure to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply). The Borrower consents on behalf of itself and each other Loan Party to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation. For the avoidance of doubt, no amounts received by the Administrative Agent or any Lender against from any Guarantor that is not a Qualified ECP Guarantor shall be applied in partial or complete satisfaction of any Excluded Swap Obligations.
(l) Notwithstanding anything to the contrary in this Agreement, the Administrative Agent may, in its discretion at any time or from time to time, without the Borrower’s request and even if the conditions set forth in Section 5.2 would not be satisfied, make a Revolving Loan in an amount equal to the portion of the Obligations constituting overdue interest and fees and Swingline Loans from time to time due and payable to itself, any Revolving Lender, the Swingline Lender or the Issuing Lender, and apply the proceeds of any such Revolving Loan to those Obligations; provided that after giving effect to any such Revolving Loan, the aggregate outstanding Revolving Loans will not exceed the Total Revolving Commitments then in effect.
Appears in 2 contracts
Samples: Credit Agreement (Alkami Technology, Inc.), Credit Agreement (Alkami Technology, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of the Facility Fee or Letter of Credit fee, and any commitment fee reduction of the Commitments of the Lenders under any Facility, shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders. Any reduction Each payment of interest in respect of the Revolving Commitments Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Credit Lenders. Each payment in respect of interest Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit. Each payment (including each prepayment) by the Borrower on the Revolving account of principal of any Series of Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans in such Series then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Term Loan Lenders.
(c) The application of any payment of Loans under any Facility (including mandatory prepayments but excluding optional prepayments, which shall be applied as directed by the Borrower) shall be made, first, to Base Rate Loans under such Facility and, second, to Term SOFR Loans under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.pm, local time in New York City timeCity, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent Any payment made by the Borrower after 2:00 pm, local time in New York City, on any Business Day shall distribute such payments be deemed to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7have been on the next following Business Day. If any payment hereunder (other than payments on the Eurodollar Term SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing of Loans that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Base Rate Loans, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) Upon receipt by the Administrative Agent of payments on behalf of Lenders, the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agent. If and to the extent the Administrative Agent shall not make such payments to a Lender when due as set forth in the preceding sentence, then such unpaid amounts shall accrue interest, payable by the Administrative Agent, at the Federal Funds Rate from the due date until (but not including) the date on which the Administrative Agent makes such payments to such Lender. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8.1(f), or otherwise) (the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Lender Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
Appears in 2 contracts
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.), Credit Agreement (Essential Properties Realty Trust, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Commitments or Revolving Percentages Commitments, as the case may be, of the relevant Lenders except (i) to Lenders. Each payment by the extent that this Agreement provides for reductions to be disproportionately allocated to a group Borrower on account of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction commitment fees hereunder shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages Commitments of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each Except as otherwise provided herein from time to time, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Tranche B Term Loans shall be made (i) in the case of principal, pro rata according to the respective outstanding principal amounts of the Tranche B Term Loans then held by the Tranche B Term Lenders, and (ii) in the case of interest, pro rata according to the respective amounts of accrued and unpaid interest on the Tranche B Term Loans then due to the Tranche B Term Lenders. The amount of each principal prepayment of the Tranche B Term Loans shall be applied to reduce the then remaining installments of the Tranche B Term Loans as directed by the Borrower by notice to the Administrative Agent. Amounts prepaid on account of the Tranche B Term Loans may not be reborrowed.
(c) Except as otherwise provided herein from time to time, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made (i) in the case of principal, pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders, and (except for prepayments pursuant to Section 2.9(c)ii) in the case of interest, which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of accrued and unpaid interest on the Revolving Loans then held by the Lenders, except due to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, Agent at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant the applicable Lenders (or, in the case of amounts payable to them, to the Swingline Lender or Issuing Lender, or, in the case of amounts payable to it, retained by the Administrative Agent) promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. 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.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the applicable Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (National Mentor Holdings, Inc.), Credit Agreement (National Mentor Holdings, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower Borrowers from the Lenders hereunder and hereunder, each payment by the Borrower Company on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower Borrowers on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments Term Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans pro rata based upon the respective then remaining principal amounts thereof, provided that, in the case of any optional prepayment of Term Loans pursuant to Section 2.9(c)2.8, which the amount of principal prepayment shall be allocated applied as provided directed by the Company in its notice issued pursuant to such Section). Amounts prepaid or repaid on account of the Term Loans or Incremental Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrowers on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent Borrowers by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the BorrowerBorrowers.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower Company prior to the date of any payment due to be made by the Borrower Borrowers hereunder that the Borrower Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower Borrowers within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerBorrowers.
(g) Notwithstanding anything to the contrary in this Agreement, the Borrowers, with the consent of the Lenders whose Loans are to be purchased or prepaid pursuant to this Section 2.15, shall have the option, from time to time, to purchase or prepay Loans on a non-pro rata basis and nothing in this Section 2.15 shall prohibit such transactions or require payments made in connection therewith to be made on a pro rata basis; provided that (i) any Loans so purchased or prepaid are cancelled (and, in the case of any prepayment of Revolving Loans of a Revolving Lender pursuant to this Section 2.15, (x) the applicable Revolving Lender’s Revolving Commitment shall be permanently reduced in proportion to the par value of the Revolving Loan so purchased or prepaid (and if all of such Revolving Lender’s Revolving Loans are so purchased or prepaid, such Revolving Lender’s entire Revolving Commitment shall be terminated, (y) each L/C Participant’s Revolving Percentage shall be deemed automatically readjusted to reflect such reduction in Revolving Commitments and (z) if the Revolving Extensions of Credit would otherwise exceed the aggregate Revolving Commitments after giving effect to any such purchase or prepayment, then the Company shall at the time of such purchase or prepayment cash collateralize for the benefit of the relevant Issuing Lender only the Borrowers’ obligations corresponding to such Revolving Lender’s Revolving Percentage of the L/C Obligations in accordance with the procedures set forth in Section 9 for so long as such L/C Obligations are outstanding), (ii) at the time of any such purchase or prepayment (x) no Event of Default has occurred or is continuing and (y) after giving effect to any such purchase or prepayment, the Revolving Extensions of Credit shall not exceed the aggregate Revolving Commitments (after giving effect to the collateralization of Letters of Credit pursuant to clause (i) above) nor shall the Revolving Commitment of any Lender be increased.
Appears in 2 contracts
Samples: Credit Agreement (Mirant Corp), Credit Agreement (Rri Energy Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except Lenders. Each payment (iother than prepayments) in respect of principal or interest in respect of the Loans, each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective Revolving Percentages of amounts then due and owing to the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders (except as otherwise provided in Section 2.18(d)). Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders.
(except for prepayments d) Notwithstanding anything to the contrary in Sections 2.11, 2.12 or 2.18, each Term Loan Lender may, at its option, decline all or any portion of any partial prepayment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any prepayment described in Section 2.11 or 2.12 that is allocated to Term Loans (such amounts, the "Prepayment Amount"), the Borrower will, in the case of any prepayment required to be made pursuant to Section 2.9(c)2.11 or 2.12, in lieu of applying such amount to the prepayment of Term Loans, on the date specified in Section 2.11 or 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be allocated as provided in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such SectionLender's Prepayment Option Notice as being applicable to such Lender's Term Loans and such further amount, if any, as may be available to additionally prepay such Lender's Term Loans from the portion of the Prepayment Amount not accepted by the Accepting Lenders. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"). Each payment of interest on the Revolving Loans , and such amount shall be made pro rata according applied to reduce the Prepayment Amounts with respect to each Accepting Lender, (ii) the Borrower shall pay to the respective outstanding principal amounts Administrative Agent an amount equal to the portion of the Prepayment Amount not accepted by the Accepting Lenders (excluding such amount required to be prepaid pursuant to Section 2.12(c)), and such amount shall be applied, first, to prepay the Term Loans of each Accepting Lender, pro rata, agreeing to accept prepayment of such additional amount as described above and, second, to the permanent reduction of the Revolving Loans then held Credit Commitments, and (iii) the Borrower shall be entitled to retain the remaining portion of the Prepayment Amount not accepted by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Accepting Lenders.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.1:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Grand Union Co /De/), Credit Agreement (Grand Union Co /De/)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Lenders. Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension9.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (ESH Hospitality, Inc.), Credit Agreement (ESH Hospitality, Inc.)
Pro Rata Treatment and Payments. (ai) Each Except as provided in subsection 2.5, each borrowing of Revolving Credit Loans by the U.S. Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Funding Commitment Percentages of the LendersLenders in effect on the date of such borrowing. Each payment by the U.S. Borrower on account of any facility fee hereunder shall be allocated by the Administrative Agent among the Lenders in accordance with the respective amounts which such Lenders are entitled to receive pursuant to subsection 7.5(a). Any reduction of the Revolving Credit Commitments of the Lenders shall be made allocated by the Administrative Agent among the Lenders pro rata according to the respective Revolving Credit Commitment Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated Lenders. Except as provided in such Section.
(b) Each subsection 2.5, each payment (including each other than any optional prepayment) by the U.S. Borrower on account of principal of the Revolving Credit Loans or the CAF Advances shall be allocated by the Administrative Agent pro rata according to the respective principal amounts thereof then due and owing to each Lender. Each optional prepayment by the U.S. Borrower on account of principal of or interest on the Revolving Credit Loans shall be made allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)thereof. Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the U.S. Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding OfficeAdministrative Agent's office specified in subsection 15.2, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled to receive the same promptly upon receipt in like funds as received.
(ii) Each borrowing of Multicurrency Loans by any Foreign Subsidiary Borrower shall be made, net and any reduction of any the Multicurrency Commitments shall be allocated by the Administrative Agent, pro rata according to the Multicurrency Commitment Percentages of the Multicurrency Lenders. Each payment (including each prepayment) by a Foreign Subsidiary Borrower on account of principal of and interest on Multicurrency Loans shall be allocated by the Administrative Agent pro rata according to the respective principal amounts of the Multicurrency Loans then due and owing by such Lender pursuant Foreign Subsidiary Borrower to Section 9.7each Multicurrency Lender. All payments (including prepayments) to be made by a Foreign Subsidiary Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made at or before the payment time for the currency of such Multicurrency Loan set forth in the Administrative Schedule, on the due date thereof to the Administrative Agent, for the account of the Multicurrency Lenders, at the payment office for the currency of such Multicurrency Loan set forth in the Administrative Schedule, in the currency of such Multicurrency Loan and in immediately available funds. The Administrative Agent shall distribute such payments to the Multicurrency Lenders entitled to receive the same promptly upon receipt in like funds as received.
(iii) If any payment hereunder (other than payments on the Eurodollar Loans) Loans or the Multicurrency Loans becomes due and payable on a day other than a Business Day, the maturity of 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. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of 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) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(db) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing Borrowing Date that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans or CAF Advances) and (ii) a rate determined by the Administrative Agent Agent's reasonable estimate of its average daily cost of funds (in accordance with banking industry rules on interbank compensationthe case of a borrowing of Multicurrency Loans), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.such
Appears in 2 contracts
Samples: Revolving Credit and Guarantee Agreement (Case Corp), Revolving Credit and Guarantee Agreement (Case Credit Corp)
Pro Rata Treatment and Payments. (a) Each Subject to Section 2.31, (a) each borrowing by the any Borrower of Dollar Revolving Loans from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Borrowing Percentages of the relevant Lenders. Any , (b) each payment by any Borrower on account of any facility fee and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except and (ic) to each borrowing by any Borrower of Multicurrency Loans from the extent that this Agreement provides for reductions to be disproportionately allocated to a group Multicurrency Lenders hereunder and any reduction of the Multicurrency Subcommitments of the Multicurrency Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Multicurrency Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionMulticurrency Lenders.
(b) Each Subject to Section 2.31, (a) each payment (including each prepayment) by the any Borrower on account of principal of and interest on the Dollar Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Dollar Revolving Loans then held by the Lenders and (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each b) each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Multicurrency Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Multicurrency Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Multicurrency Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunderany Borrower, whether on account of principal, interest, fees or otherwise, shall be made without deduction for any defense, recoupment, setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the its Funding Office, in Dollars (based on the Dollar Equivalent thereof in the case of fees payable under Section 2.14(b) with respect to Letters of Credit denominated in Foreign Currencies) and in immediately available funds (or, in the case of principal or interest relating to Multicurrency Loans, prior to 3:00 P.M., London time, on the due date thereof to the Administrative Agent, for the account of the Multicurrency Lenders, at its Funding Office, in the relevant Foreign Currency and in immediately available funds). The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined Overnight Rate, plus any applicable administrative, processing or similar fees customarily charged by the Administrative Agent in accordance connection with banking industry rules on interbank compensationthe foregoing, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the applicable Borrower or (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate determined by the Administrative Agent to be the cost to it of funding such amount, on demand, from the applicable Borrower. If the applicable 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 such Borrower the amount of such interest paid by 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 such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. Any notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error.
(e) Unless the Administrative Agent shall have been notified in writing by the applicable Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the applicable Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Overnight Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerBorrowers or any of them. Any notice of the Administrative Agent to any Borrower with respect to any amount owing under this subsection shall be conclusive, absent manifest error.
(f) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit, Swingline Loans and Euro Swingline Loans and to make payments pursuant to Section 8.7 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 8.7 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 Loans, to purchase its participation or to make its payment under Section 8.7.
(g) Failure to Satisfy Conditions Precedent. 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 Section 2, 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 Section 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.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Kennametal Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Revolving Credit 1 Lenders hereunder and each shall be made pro rata according to the Revolving Credit 1 Percentages of the Revolving Credit 1 Lenders. Each borrowing by the Borrower from the Revolving Credit 2 Lenders hereunder shall be made pro rata according to the Revolving Credit 2 Percentages of the Revolving Credit 2 Lenders. Each payment by the Borrower on account of any commitment fee the Revolving 1 Commitment Fee or Revolving 2 Commitment Fee shall be made pro rata according to the respective Revolving Credit 1 Percentages or Revolving Credit 2 Percentages, as the case may be, of the relevant Lenders. Any reduction Subject to Sections 2.18(b) and (c), each payment (other than prepayments) in respect of principal or interest in respect of the Revolving Commitments Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group Lenders. The application of Lenders with respect to a particular Class any mandatory prepayment pursuant to this Section 2.6, in which case each reduction 2.18 shall be allocated made, first, to the Lenders in such Class pro rata according Base Rate Loans and, second, to the respective Revolving Percentages Eurodollar Loans. For purposes of the relevant Lenders and clarification, Permitted Loan Repurchases shall not constitute payments (iior prepayments) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionof Loans for any purpose hereunder.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders, and such payments and prepayments, and the principal amount of Term Loans cancelled and retired in connection with any Permitted Loan Repurchase, shall be applied to reduce the installments of such Term Loans (provided that the final payment of Term B-1 Loans and Term B-2 Loans on the Term B-1 Loan Termination Date and the Term B-2 Loan Termination Date, respectively, and of any Series of New Term Loans on the final maturity date thereof shall be treated as “installments” for purposes of this subsection (b)) pro rata based on the remaining outstanding principal amount of such installments; provided, however, that any prepayment made pursuant to Section 2.12(e)(i)(D) shall be applied in its entirety to reduce the installment of the Term B Loans due on September 30, 2012. Amounts prepaid on account of the Term Loans may not be reborrowed. Notwithstanding the foregoing and for the avoidance of doubt, (i) the Borrower shall make each payment of interest on the Term B-1 Loans, the Term B-2 Loans and each Series of New Term Loans on the dates and at the rates set forth in Section 2.15, which payments shall be made to the Term B-1 Loan Lenders, Term B-2 Loan Lenders and New Term Loan Lends under each Series of New Term Loans, as the case may be, pro rata according to the respective principal amounts of the Term B-1 Loans, Term B-2 Loans or New Term Loans (as applicable) then held by such Lenders and (ii) the Borrower shall repay the outstanding Term B-1 Loans to the Term B-1 Loan Lenders on the Term B-1 Loan Termination Date, the outstanding Term B-2 Loans to the Term B-2 Loan Lenders on the Term B-2 Loan Termination Date and the outstanding New Term Loans of each Series to the New Term Lenders thereunder on any amortization date or final maturity date of such Series.
(c) Each payment (including each prepayment) on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in connection with any Letter of Credit shall be made to the Issuing Lender. Each reduction of the Revolving Credit 1 Commitments or Revolving Credit 2 Commitments (except for prepayments other than pursuant to Section 2.9(c10.6(g), which ) shall be allocated made pro rata according to the respective Revolving Credit 1 Percentages or Revolving Credit 2 Percentages, as provided in such Section)the case may be, of the relevant Lenders. Each Notwithstanding the foregoing, (i) the Borrower shall make each payment of interest on the Revolving Credit 1 Loans and the Revolving Credit 2 Loans on the dates and at the rates set forth in Section 2.15, which payments shall be made to the Revolving Credit 1 Lenders or the Revolving Credit 2 Lenders, as the case may be, pro rata according to the respective outstanding principal amounts of the Revolving Credit 1 Loans or Revolving Credit 2 Loans (as applicable) then held by the such Lenders, except (ii) the Borrower may apply prepayments of the Revolving Credit Loans under Sections 2.11 and 2.12(f) to the extent that this Agreement provides that different Classes of Revolving Credit 1 Loans shall have different Applicable Marginsand/or the Revolving Credit 2 Loans in such percentages as the Borrower may elect, in which case each payment payments shall be allocated made to the Revolving Credit 1 Lenders in such Class or the Revolving Credit 2 Lenders, as the case may be, pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Revolving Credit 1 Loans or Revolving Credit 2 Loans (as applicable) then held by such Lenders, (iii) the Borrower shall make prepayments of the Revolving Credit 1 Loans and/or Revolving Credit 2 Loans as required pursuant to Sections 2.12(e) and 2.12(g), which payments shall be made to the Revolving Credit 1 Lenders or the Revolving Credit 2 Lenders, as the case may be, pro rata according to the respective outstanding principal amounts of the Revolving Credit 1 Loans or Revolving Credit 2 Loans (as applicable) then held by such Lenders, and (iv) the Borrower shall repay the outstanding Revolving Credit 1 Loans to the Revolving Credit 1 Lenders on the Revolving Credit 1 Termination Date and the Revolving Credit 2 Loans to the Revolving Credit 2 Lenders on the Revolving Credit 2 Termination Date.
(cd) All Subject to Section 2.20, all payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR the Loans made pursuant to such borrowing as if they were Base Rate Loans, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Wynn Las Vegas LLC), Credit Agreement (Wynn Resorts LTD)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower of Revolving Credit Loans from the Lenders hereunder and hereunder, each payment by the Borrower Gannett on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages 364-Day Commitments or Five-Year Commitments, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Each payment (including each prepayment) by the Borrower Gannett on account of principal of and interest on the Revolving 364-Day Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving 364-Day Loans then held by the Lenders Lenders, and each payment (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment including each prepayment) by Gannett on account of principal of and interest on the Revolving Five-Year Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Five-Year Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes . Each payment by Gannett on account of Revolving principal of and interest on any Borrowing of Competitive Loans shall have different Applicable Margins, in which case each payment shall be allocated to made pro rata among the Lenders participating in such Class pro rata Borrowing according to the respective Revolving Percentages principal amounts of the relevant Lenderstheir outstanding Competitive Loans comprising such Borrowing.
(cb) All payments (including prepayments) to be made by the Borrower Gannett hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City Dallas, Texas time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAgent's office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by Gannett to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Gannett a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from Gannett. Nothing herein shall be deemed to limit the Borrowerrights of Gannett against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower Gannett prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower Gannett will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower Gannett is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower Gannett within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerGannett.
Appears in 2 contracts
Samples: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/), Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder and shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be made allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, pro rata according to the respective relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the and interest on any Revolving Credit Loans shall be made allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Term Loan Lenders. Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees fees, Reimbursement Obligations or otherwise, shall be made without setoff set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders holding the relevant Loans or the L/C Participants, as the case may be, at the Funding OfficeAdministrative Agent’s office specified in subsection 13.2, in Dollars and or, in the case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, in immediately available funds. Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, in like funds as received, net received prior to the end of any amounts owing by such Lender pursuant Business Day and otherwise the Administrative Agent shall distribute such payment to Section 9.7such Lenders on the next succeeding Business Day. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, the maturity of 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. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof of 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) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(db) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing that such Revolving Credit Lender will not make the amount that would constitute its share Revolving Credit Commitment Percentage of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower in respect of such borrowing a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s share Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall notify the Borrower of the failure of such Revolving Credit Lender to make such amount available to the Administrative Agent and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans hereunder, on demand, from the Borrower.
(ec) Unless the Administrative Agent Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall have been notified in writing by the Borrower prior to the date of any payment due not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower hereunder that shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the Borrower will not to each become a substitute Revolving Credit Lender and assume all or part of the Revolving Credit Commitment of such Defaulting Lender. In such event, the Borrower, the Administrative Agent and any such substitute Revolving Credit Lender shall execute and deliver, and such Defaulting Lender shall thereupon be deemed to have executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution.
(ii) In determining the Required Lenders, any Lender that at the time is a Defaulting Lender (and the Loans and Revolving Credit Commitment of such Defaulting Lender) shall be excluded and disregarded. No commitment fee shall accrue for the account of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(iii) If at any time the Borrower shall be required to make any payment under any Loan Document to or for the account of a Defaulting Lender, then the Borrower, so long as it is then permitted to borrow Revolving Credit Loans hereunder, may set off and otherwise apply its obligation to make such payment against the obligation of such Defaulting Lender to make such Loan with respect to which there has been a Default. In such event, the amount so set off and otherwise applied shall be deemed to constitute a Revolving Credit Loan by such Defaulting Lender made on the date of such set-off and included within any borrowing of Revolving Credit Loans as the Administrative Agent may reasonably determine.
(iv) If, with respect to any Defaulting Lender, which for the purposes of this subsection 4.8(c)(iv), shall include any Revolving Credit Lender (i) that has commenced any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) has sought appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or having made a general assignment for the benefit of its creditors; or (ii) with respect to which there shall be commenced against such Defaulting Lender any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced against such Defaulting Lender any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Defaulting Lender shall take any corporate action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Defaulting Lender shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due; the Borrower shall be required to pay any amount under any Loan Document to or for the account of such Defaulting Lender, then the Borrower, so long as it is then permitted to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying such amount to the Administrative Agent, to be (to the extent permitted by applicable law and to the extent not utilized by the Administrative Agent may assume that to satisfy obligations of the Borrower is making such payment, and Defaulting Lender owing to it) held by the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available escrow pursuant to its standard terms (including as to the Lenders their respective pro rata shares earning of a corresponding amount. If interest), and applied (together with any accrued interest) by it from time to time to make any Revolving Credit Loans or other payments as and when required to be made by such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Defaulting Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrowerhereunder.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement, Credit and Guarantee Agreement (Sirva Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Loans by the Borrower from the Revolving Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the respective Revolving Percentages Commitments then held by the Revolving Lenders. Each payment by the Borrower on account of the relevant Lenders except (i) any commitment fee or any letter of credit fee shall be paid ratably to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Revolving Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionentitled thereto.
(b) Each payment (including each prepayment) prepayment by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Revolving Lenders. All repayments of principal of the Revolving Loans at stated maturity or upon acceleration shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the matured or accelerated Revolving Loans then held by the relevant Revolving Lenders, except to . All payments of interest in respect of the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment loans shall be allocated to the Lenders in such Class pro rata according to the respective outstanding interest payable then owed to the relevant Revolving Percentages Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under this Agreement (whether on 509265-1754-14343-Active.00000000.13 account of principal, interest, fees or otherwise but excluding any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16 and Section 9.05) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent and the Issuing Bank hereunder (including amounts owed under Section 2.09(b) or 9.04(c)), (2) second, to the funding of any Revolving Loan or LC Disbursement required by this Agreement, as determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the relevant LendersDefaulting Lender under this Agreement, (4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Revolving Loans, such payment shall be applied solely to prepay the Revolving Loans of all non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to being applied to the prepayment of any Revolving Loan of any Defaulting Lender.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time (or as specified in the next sentence in the case of Loans in an Alternative Currency), on the date when due. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and interest on Loans in an Alternative Currency shall be made on the dates specified herein for the pro rata account of the relevant Lenders to which such payment is owed, in such Alternative Currency and in immediately available funds not later than the Applicable Time specified by the Administrative Agent to the Borrower by the same time at least one Business Day prior to the date when due. All payments received by the Administrative Agent (i) after 2:00 p.m., New York City time, on in the due date thereof to case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the account of Administrative Agent at its offices at 0000 Xxxxxx Xxxxxx, Houston, Texas except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.04 shall be made directly to the Lenders, at the Funding Office, in Dollars and in immediately available fundsPersons entitled thereto. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing If at any time insufficient funds are received by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date thereforto pay fully all amounts of principal, interest and fees then due hereunder, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph funds shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available applied (subject to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent to hold and apply amounts to be paid to a Defaulting Lender in accordance with Section 2.15(b)) (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. To the extent necessary, the Administrative Agent shall enter into foreign currency exchange transactions on customary terms to effect any such ratable payment and the payments made by the Administrative Agent following such transactions shall be deemed to be payments made by or on behalf of the Borrower hereunder.
(e) If any Lender shall, by exercising any right of set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective 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 against as consideration for the Borrower.assignment of or sale of a participation in any of its Loans to any assignee or participant. 509265-1754-14343-Active.16873744.13
Appears in 2 contracts
Samples: Credit Agreement (QVC Inc), Credit Agreement (QVC Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except Lenders. Subject to Section 2.18(c), each payment (iother than prepayments) in respect of principal or interest in respect of the Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective Revolving Percentages amounts then due and owing to the Lenders. The application of any mandatory prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each payment (including each prepayment) of Term Loans shall be allocated among the relevant Term Loan Lenders holding such Term Loans pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders, and shall be applied to the installments of such Term Loans (provided that the final payment of Term Loans on the Term Loan Termination Date shall be treated as an "installment" for purposes of this subsection (b)) (i) pro rata based on the remaining outstanding principal amount of such installments in the case of mandatory prepayments required pursuant to Section 2.12(e) and (ii) reductions pursuant to Section 2.9(c), which shall in the inverse order of the scheduled maturities of such installments in the case of all other mandatory prepayments. Amounts prepaid on account of the Term Loans may not be allocated as provided in such Sectionreborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Credit Lenders. Each payment in respect of interest on the Revolving Loans Reimbursement Obligations in connection with any Letter of Credit shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersIssuing Lender.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Las Vegas LLC)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Percentages, Tranche B Term Percentages, Dollar Revolving Percentages or Alternative Currency Revolving Percentages, as the case may be, of the relevant Lenders except (i) in the Class subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionreduction.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Term Lenders (except for prepayments (i) as otherwise provided in Section 2.11(e), (ii) that an optional prepayment pursuant to Section 2.9(c2.10 need only be made pro rata according to the respective outstanding principal amounts of the Term Loans of the applicable Class being prepaid then held by the Term Lenders, (iii) any prepayment of Term Loans with the Net Cash Proceeds of Credit Agreement Refinancing Debt shall be applied solely to each applicable Class of Refinanced Debt and (iv) any prepayment of Term Loans with the Net Cash Proceeds of Debt pursuant to Section 2.11(a) may be applied to a Class or Classes of Term Loans as directed by the Borrower). The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed. Notwithstanding any other provision of this Section 2.17(b), which a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Section 2.10 or Section 2.11, exchange such Lender’s portion of the Term Loan to be repaid for Debt of the Borrower, in lieu of such Lender’s pro ratio portion of such prepayment (and any such Term Loans so exchanged shall be allocated as provided in such Sectiondeemed repaid for all purposes under the Loan Documents). .
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of relevant Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding OfficeOffice for the applicable currency, in Dollars the currency in which the applicable Loan was made and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to (i) with respect to borrowings under the Dollar Revolving Facility, ABR LoansLoans under the Dollar Revolving Facility or (ii) with respect to borrowings under the Alternative Currency Revolving Facility, Eurodollar Loans under the Alternative Currency Revolving Facility, in each case, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.5, Section 2.7(c), Section 3.4, Section 3.5 or Section 11.5(c), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) until such failure to make payment has been cured, hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Davita Healthcare Partners Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Loans by the Borrower from the Revolving Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the respective Revolving Percentages Commitments then held by the Revolving Lenders. Each payment by the Borrower on account of the relevant Lenders except (i) any facility fee or any letter of credit fee shall be paid ratably to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Revolving Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionentitled thereto.
(b) Each payment (including each prepayment) prepayment by the Borrower on account of principal of the Revolving any Loans of any Class shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans of such Class then held by the Lenders entitled to such payment (except for prepayments pursuant subject in the case of Term B Loans to Section 2.9(c2.08(f)). Subject to Section 2.15(d), which all repayments of principal of any Loans at stated maturity or upon acceleration shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving matured or accelerated Loans then held by the relevant Lenders. Subject to Section 2.15(d), except to the extent that this Agreement provides that different Classes all payments of Revolving interest in respect of any Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of outstanding interest payable then owed to the relevant Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise but excluding any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16 and Section 9.05) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent, the Issuing Bank and the Swing Line Lender hereunder (including amounts owed under Section 2.09(b) or 9.04(c)), (2) second, to the funding of any Loan or LC Disbursement required by this Agreement, as determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Loans, such payment shall be applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to being applied to the prepayment of any Loan of any Defaulting Lender.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time, on the due date thereof when due. All payments received by the Administrative Agent after 2:00 p.m., New York City time, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest and fees thereon. All such payments shall be made to the Administrative Agent’s Office except that payments pursuant to Sections 2.12, for 2.13, 2.14, 2.22 and 9.04 shall be made directly to the account of the Lenders, at the Funding Office, in Dollars and in immediately available fundsPersons entitled thereto. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless Subject to the Administrative Agent shall terms of the Pari Intercreditor Agreement, after the exercise of remedies provided for in Section 7.01 (or after any Loans have automatically become immediately due and payable and the Letters of Credit have automatically been notified required to be cash collateralized as contemplated by Section 7.01) and irrespective of any other provision of any Loan Document to the contrary, any amounts (including cash, equity securities, debt securities or any other property; provided that if any such amounts are not in writing by any Lender prior to a borrowing that such Lender will not make the form of cash, then the amount that would constitute its share of such borrowing available securities or other property applied to each of clauses First through Last below shall be an amount with a fair market value equal to the Administrative Agent, stated amount required to be applied pursuant to each such clause) received on account of the Administrative Agent may assume that Collateral or in consideration of any waiver of any rights to receive any payment of the Obligations (whether received as a consequence of the exercise of such Lender is making remedies or as a distribution under any Insolvency or Liquidation Proceeding including payments in respect of “adequate protection” for the use of Collateral during such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available proceeding or under any Plan of Reorganization or on account of any liquidation of any Loan Party) shall be turned over to the Administrative Agent (to the extent not received directly by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined applied by the Administrative Agent in accordance with banking industry rules on interbank compensationthe following order: First, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate payment of that portion of the Administrative Agent submitted to any Lender Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest and fees with respect to any the Loans and the Commitments, but including amounts owing payable under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available Section 9.04) payable to the Administrative Agent in its capacity as such (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed in any Insolvency or Liquidation Proceeding) until paid in full; Second, ratably, (i) to payment of that portion of the Priority Payment Obligations then due and payable ratably among the Secured Parties in proportion to the amounts of such Priority Payment Obligations then due and payable held by the Secured Parties described in this clause Second until paid in full and (ii) to cash collateralize Letters of Credit in accordance with Section 2.17(k) until the Letters of Credit have been cash collateralized in full; Third, to payment of that portion of all other Obligations ratably among the Secured Parties in proportion to the amount of such Lender within three (3) Business Days after such Borrowing DateObligations owing to the Secured Parties described in this Clause Third until paid in full; Last, the Administrative Agent balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law. Subject to Section 2.17, amounts used to cash collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Second above shall also be entitled applied to recover satisfy drawings under such Letters of Credit as they occur. If any amount with interest thereon at remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the rate per annum applicable other Obligations, if any, in the order set forth above and, if no Obligations remain outstanding, to ABR Loans, on demand, from the Borrower. In furtherance of the foregoing, each Secured Party hereby agrees that it will not support or agree to any Non-Conforming Plan of Reorganization. The parties to each Loan Document (including each Loan Party) irrevocably agree that this Agreement (including the provisions of this Section 2.15) constitutes a “subordination agreement” within the meaning of both New York law and Section 510(a) of the Bankruptcy Code of the United States, and that the terms hereof will survive, and will continue in full force and effect and be binding upon each of the parties hereto, in any Insolvency or Liquidation Proceeding.
(e) Unless the Administrative Agent shall have been notified If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in writing by the Borrower prior to the date respect of any payment due to be made by the Borrower hereunder that the Borrower will not make principal of or interest on any of its Loans or participations in Letters of Credit or fees owing hereunder, it shall turn such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made amount over to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available for application pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerSection 2.15(d).
Appears in 2 contracts
Samples: Credit Agreement (LSC Communications, Inc.), Credit Agreement (LSC Communications, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by of Revolving Loans and any reduction of the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee Revolving Commitments shall be made pro rata according to the respective Revolving Commitment --- ---- Percentages of the Lenders. Any reduction Each payment under this Agreement or any Note shall be applied, first, to any fees then due and owing by the Borrower pursuant to Section 2.5, second, to interest then due and owing in respect of the Revolving Commitments Notes of the Lenders Borrower and, third, to principal then due and owing hereunder and under the Notes of the Borrower. Each payment on account of any fees pursuant to Section 2.5 shall be made pro rata according in accordance with the respective amounts due and --- ---- owing (except as to the respective Revolving Percentages portion of the relevant Lenders except (i) to Letter of Credit retained by the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to Issuing Lender and the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(cIssuing Lender Fees), which shall be allocated as provided in such Section.
(b) . Each payment (including each prepaymentother than prepayments) by the Borrower on account of principal of and interest on the Revolving Loans and on the Term Loans shall be made pro rata according to the respective outstanding amounts due --- ---- and owing in accordance with Section 2.7 hereof. Each optional prepayment on account of principal amounts of the Revolving Loans then held by shall be applied, to such of the Lenders Loans as the Borrower may designate (except for to be applied pro rata among the Lenders); provided, --- ---- -------- that prepayments made pursuant to Section 2.9(c), which 2.15 shall be allocated as provided applied in accordance with such Section)section. Each payment mandatory prepayment on account of interest on principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, applied in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) accordance with Section 2.7(b). All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, interest and fees or otherwise, shall be made without setoff defense, set-off or counterclaim (except as provided in Section 2.18(b)) and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, Agent for the account of the Lenders, Lenders at the Funding Office, Agent's office specified on Schedule 9.2 in Dollars and in ------------ immediately available fundsfunds not later than 1:00 P.M. (Charlotte, North Carolina time) on the date when due. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled thereto promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar LIBOR Rate Loans) 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. If any payment on a Eurodollar LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Advanced Glassfiber Yarus LLC), Credit Agreement (BGF Industries Inc)
Pro Rata Treatment and Payments. (a) Each borrowing Borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Term Lenders and shall be applied to the installments of the Term Loans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loans held by the Term Lenders of such Class. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of applicable Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.1:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments) to be made by any Borrower hereunder on account of principal or interest on the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.79.8. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans, RFR Loans or Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan, RFR Loan or Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing the Borrowing Date (or, in the case of any Borrowing of RFR Loans or ABR Loans, prior to 3:00 p.m., New York City time, on the Borrowing Date) that such Lender will not make the amount that would constitute its share of such borrowing Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the period until date such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing Borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to ABR Loansthe greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent, on demand, from the applicable Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the greater of (i) the daily average Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.8, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(i) With respect to any payment that the Administrative Agent makes for the account of the Lenders or any Issuing Lender hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such Issuing Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Appears in 2 contracts
Samples: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders (except as otherwise provided in Section 2.18(d)). Except as otherwise provided in Section 2.11, as among the Term Loans, prepayments shall be applied 75% ratably to the respective remaining installments thereof and 25% in the direct order to the respective next four installments thereof (or, to the extent that the aggregate principal amount of the next four installments of the Term Loan Facility is less than such 25%, the excess shall be applied ratably to the respective remaining installments thereof). Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders.
(except d) Notwithstanding anything to the contrary in Section 2.12 or 2.18, so long as any Revolving Credit Loans are outstanding, each Term Loan Lender may, at its option, decline up to 100% of the portion of any mandatory payment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term Loans (such amounts, the "Term Loan Prepayment Amount"), at any time when Revolving Credit Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans, on the date specified in Section 2.12 for prepayments pursuant such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to Section 2.9(c)each Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be allocated as provided in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such SectionLender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the Prepayment Date (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Term Loan Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"). Each payment of interest on the Revolving Loans , and such amount shall be made pro rata according applied to reduce the Term Loan Prepayment Amounts, with respect to each Accepting Lender and (ii) the Borrower shall pay to the respective outstanding principal amounts Administrative Agent an amount equal to 100% of the portion of the Term Loan Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Revolving Credit Loans then held by without a reduction in the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersCredit Commitments.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.18(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility (in lieu of interest otherwise provided for hereunder), on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Nebraska Book Co), Credit Agreement (NBC Acquisition Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, subject to Section 2.16, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages and Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (Term Lenders. The amount of each principal prepayment of the Term Loans, except for prepayments pursuant to as expressly otherwise provided in Section 2.9(c), which 2.3 or 2.9(b) shall be allocated as provided applied to reduce the then remaining installments of the Term Loans, first, in direct order of maturity to remaining scheduled installments thereof occurring within the 12-month period immediately following such Sectionprepayment; and second, pro rata based upon the respective then remaining principal amounts thereof (including the scheduled installment due on the Term Facility Maturity Date). Amounts repaid or prepaid on account of the Term Loans may not be re-borrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of all of the Revolving Loans then held by all of the Revolving Lenders, except to the extent that this Agreement provides that different Classes of . Any Revolving Loans shall have different Applicable Margins, prepaid pursuant to Section 2.9(d) may not be re-borrowed. Any Revolving Loans repaid or prepaid other than pursuant to Section 2.9(d) may be re-borrowed in which case each payment shall be allocated to accordance with the Lenders in such Class pro rata according to the respective Revolving Percentages terms of the relevant Lendersthis Agreement.
(cd) All payments (including prepayments, but excluding payments made pursuant to Section 3.1(c)(i)) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lendersrelevant Lender Parties, at the Funding OfficeOffice (or by wire transfer to the Administrative Agent Account, unless otherwise directed in writing by the Administrative Agent), in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender Party promptly upon receipt in like funds as received, net of any amounts owing by such Lender Party pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder hereunder, and subject to Section 2.16, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Percentages and Revolving Percentages of Percentages, as the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments Term Lenders. The amount of each prepayment of the Term Loans pursuant to Section 2.9(c), which 2.8 shall be allocated applied to reduce the then remaining installments of the Term Loans as provided in such Section)directed by the Borrower. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, except to the extent that this Agreement provides that different Classes of . Any Revolving Loans shall have different Applicable Margins, prepaid pursuant to Section 2.9(d) may not be re-borrowed. Any Revolving Loans repaid or prepaid other than pursuant to Section 2.9(d) may be re-borrowed in which case each payment shall be allocated to accordance with the Lenders in such Class pro rata according to the respective Revolving Percentages terms of the relevant Lendersthis Agreement.
(cd) All payments (including prepayments, but excluding payments made pursuant to Section 2.16) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders or any Revolving Facility Issuing Bank, at the Funding OfficeOffice (or by wire transfer to the Administrative Agent Account, unless otherwise directed in writing by the Administrative Agent), in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Revolving Facility Issuing Bank or Lender promptly upon receipt in like funds as received, net of any amounts owing by such Revolving Facility Issuing Bank or Lender pursuant to Section 9.710.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Percentages, Tranche B Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for Term Lenders; provided, that optional prepayments pursuant to Section 2.9(c), which shall be allocated to the installments of the relevant Term Loans as provided in such Section)directed by the Borrower. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and the Tranche B Term Loans, as the case may be, on a pro rata basis based upon the respective then remaining principal amounts thereof; provided, that optional prepayments may be allocated to either the Tranche A Term Loans or the Tranche B Term Loans, as directed by the Borrower. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata to the Revolving Lenders according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders (except as otherwise provided in Section 2.16(d)). The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans, as the case may be, in the inverse order of maturity. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders.
(except d) Notwithstanding anything to the contrary in Section 2.10 or elsewhere in this Section 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender and each Tranche C Term Loan Lender may, at its option, decline the portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans or, as the case may be, Tranche C Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans or, as the case may be, Tranche C Term Loans (such amount, the "Tranche B Prepayment Amount" or, as the case may be, the "Tranche C Prepayment Amount"), the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans or, as the case may be, Tranche C Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for prepayments pursuant such prepayment, give the Agent telephonic notice (promptly confirmed in writing) requesting that the Agent prepare and provide to Section 2.9(c)each Tranche B Term Loan Lender and each Tranche C Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the Agent will send to each Tranche B Term Loan Lender and each Tranche C Term Loan Lender a Prepayment Option Notice, which shall be allocated in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each, a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loans or, as provided the case may be, Tranche C Term Loans of such Lender by an amount equal to the Tranche B Prepayment Amount or, as the case may be, Tranche C Prepayment Amount indicated in such SectionLender's Prepayment Option Notice. On the Prepayment Date, (A) the Borrower shall pay to the Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans and Tranche C Term Loans in respect of which Tranche B Term Loan Lenders and Tranche C Term Loan Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"). Each payment of interest on the Revolving Loans , and such amount shall be made pro rata according applied to reduce the Tranche B Prepayment Amounts and the Tranche C Prepayment Amounts, respectively, with respect to each Accepting Lender and (B) the Borrower shall pay to the respective outstanding principal amounts Agent an amount equal to the portion of the Revolving Loans then held Tranche B Prepayment Amount and the Tranche C Prepayment Amount not accepted by the Accepting Lenders, except and such amount shall be applied to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages prepayment of the relevant LendersTranche A Term Loans.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Delayed Draw Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except Lenders. Each payment (iother than prepayments) in respect of principal or interest in respect of the Loans, each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective Revolving Percentages of amounts then due and owing to the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Tranche A Term Loans or the Delayed Draw Term Loans shall be made pro rata according to the respective outstanding principal amounts of such Term Loans then due and owing to the Term Loan Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of 37 32 the Tranche A Term Loans and Delayed Draw Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Credit Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on within two Business Days of the Administrative Agent's demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
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Pro Rata Treatment and Payments. (a) Each borrowing by the a Borrower from the Lenders hereunder and hereunder, each payment by the a Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche D Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except Lenders. Subject to Section 2.18(c), each payment (iother than prepayments) in respect of principal or interest in respect of the Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective Revolving Percentages amounts then due and owing to the Lenders. The application of the relevant Lenders and (ii) reductions any prepayment pursuant to this Section 2.9(c), which 2.18 shall be allocated as provided in such Sectionmade, first, to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each payment (including each prepayment) of the Tranche D Term Loans outstanding under the Tranche D Term Loan Facility shall be allocated among the Tranche D Term Loan Lenders holding such Tranche D Term Loans pro rata based on the principal amount of such Tranche D Term Loans held by such Tranche D Term Loan Lenders, and each prepayment shall be applied to the installments of such Tranche D Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts prepaid on account of the Tranche D Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by a Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in connection with any Letter of Credit shall be made to the Issuing Lender.
(except d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, each Tranche D Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to a Term Loan (such amounts, the "Term Loan Prepayment Amount"), the Borrowers will, in lieu of applying such amount to the prepayment of applicable Term Loans, as provided in Sections 2.12(e) and 2.18(b), on or up to 10 Business Days prior to the date specified in Section 2.12 for prepayments pursuant such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche D Term Loan Lender entitled to receive a mandatory prepayment a Prepayment Option Notice as described below and, on the date specified in Section 2.9(c2.12 for such prepayment, deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d). As promptly as practicable after receiving such notice from the Borrowers, the Administrative Agent will send to each applicable Tranche D Term Loan Lender a Prepayment Option Notice, which shall be allocated as provided include an offer by the Borrowers to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Section)Lender's Prepayment Option Notice as being applicable to such Lender's Term Loans. Each payment On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of interest the outstanding relevant Term Loans in respect of which Tranche D Term Loan Lenders have accepted prepayment as described above, and such amount shall be applied to reduce the Term Loan Prepayment Amounts with respect to each accepting Lender, and (ii) the Administrative Agent shall pay to the applicable Borrower from the amount deposited in such cash collateral account the remaining portion of the Term Loan Prepayment Amount not accepted by the Tranche D Term Loan Lenders; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clause (i) of this sentence, the Borrowers shall pay to the Administrative Agent, on the Revolving Loans shall be made pro rata according Prepayment Date, in immediately available funds an amount equal to the respective outstanding principal amounts difference between such amounts. The Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Revolving Loans then held by the LendersSecured Parties, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, a continuing security interest in which case each payment shall be allocated to the Lenders all amounts at any time on deposit in such Class pro rata according cash collateral account to the respective Revolving Percentages of the relevant Lenderssecure all Obligations from time to time outstanding.
(ce) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(eg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by the Borrower Borrowers prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower Borrowers within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerBorrowers.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the each Borrower from the Lenders hereunder and hereunder, each payment by the each Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Original Term Percentages, New Term Percentages, Incremental Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the each Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Original Term Loans, New Term Loans and Incremental Term Loans of such Borrower then held by the Term Lenders (except for prepayments and shall be applied pro rata to the Original Term Loans, New Term Loans and Incremental Term Loans of each Borrower to the remaining installments thereof; provided that to the extent any mandatory prepayment of Term Loans required pursuant to Section 2.9(c)4.2 would require the payment of a dividend by MMM in order to finance such payment which would trigger the payment of taxes by the recipient of such dividend, which shall MMM may request, and the Administrative Agent may consent in its discretion, that such prepayment not be allocated as provided in such Section)required to be applied ratably to the Term Loans of each Borrower. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by a Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, compensation for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the relevant Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the a Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the relevant Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the either Borrower.
(g) The Administrative Agent may elect, in its sole discretion, to reallocate Original Term Loans and New Term Loans between the Lenders for administrative purposes.
Appears in 1 contract
Samples: Credit Agreement (Aveta Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section[Reserved].
(b) Each payment (including each prepayment) prepayment by the Borrower on account of principal of the Revolving Term Loans pursuant to Section 2.09(a) shall be made allocated to the Initial Term Facility and the New Term Facilities in respective amounts determined by the Borrower so long as the amount allocated to the Initial Term Facility is no less than the Initial Term Percentage of the amount of such prepayment. Any such amount allocated to the Initial Term Facility shall in turn be allocated to the Initial Term Loans pro rata to such Term Loans according to the respective outstanding principal amounts of such Term Loans then held by the Initial Term Lenders. Any such amount allocated to the New Term Facilities shall in turn be allocated to one or more New Term Facilities as selected by the Borrower, and to the Term Loans under the selected Facilities pro rata to such Term Loans according to the respective outstanding principal amounts of such Term Loans then held by the relevant Term Lenders. Each prepayment by the Borrower on account of principal of the Term Loans pursuant to Section 2.09(c) shall be allocated pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Term Lenders. All repayments of principal of the Term Loans at stated maturity or upon acceleration shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving matured or accelerated Term Loans then held by the relevant Term Lenders, except to . All payments of interest in respect of the extent that this Agreement provides that different Classes of Revolving Term Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages outstanding interest payable then owed to the relevant Term Lenders. Amounts prepaid on account of the relevant LendersTerm Loans may not be reborrowed.
(c) [Reserved].
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 noon, New York City time, on the due date thereof to when due. All payments received by the Administrative Agent after 12:00 noon, New York City time, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the account of Administrative Agent at its offices at Xxxxxxxxx Xxxxx, XX-0, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Lenders, at the Funding Office, in Dollars and in immediately available fundsPersons entitled thereto. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing If at any time insufficient funds are received by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date thereforto pay fully all amounts of principal, interest and fees then due hereunder, such Lender funds shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the Federal Funds Effective Rate parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) a rate determined by second, towards payment of principal then due hereunder, ratably among the Administrative Agent parties entitled thereto in accordance with banking industry rules on interbank compensation, for the period until amounts of principal then due to such Lender makes such amount immediately available to parties. To the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Dateextent necessary, the Administrative Agent shall also enter into foreign currency exchange transactions on customary terms to effect any such ratable payment and the payments made by the Administrative Agent following such transactions shall be entitled deemed to recover such amount with interest thereon at be payments made by or on behalf of the rate per annum applicable to ABR Loans, on demand, from the BorrowerBorrower hereunder.
(ef) Unless If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the Administrative Agent aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall have been notified purchase (for cash at face value) participations in writing the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Borrower prior Lenders 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 date extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment due to be made by the Borrower hereunder that pursuant to and in accordance with the Borrower will not make such express terms of this Agreement or any payment to obtained by a Lender as consideration for the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares assignment of or sale of a corresponding amount. If such payment is not made participation in any of its Loans to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent assignee or any Lender against the Borrowerparticipant.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Loans by the Borrower from the Revolving Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the respective Revolving Percentages Commitments then held by the Revolving Lenders. Each payment by the Borrower on account of the relevant Lenders except (i) any commitment fee or any letter of credit fee shall be paid ratably to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Revolving Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionentitled thereto.
(b) Each payment (including each prepayment) prepayment by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Revolving Lenders. All repayments of principal of the Revolving Loans at stated maturity or upon acceleration shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the matured or accelerated Revolving Loans then held by the relevant Revolving Lenders, except to . All payments of interest in respect of the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective outstanding interest payable then owed to the relevant Revolving Percentages Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise but excluding any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16 and Section 9.05) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent and the Issuing Bank hereunder (including amounts owed under Section 2.09(b) or 9.04(c)), (2) second, to the funding of any Revolving Loan or LC Disbursement required by this Agreement, as determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the relevant LendersDefaulting Lender under this Agreement, (4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Revolving Loans, such payment shall be applied solely to prepay the Revolving Loans of all Non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to being applied to the prepayment of any Revolving Loan of any Defaulting Lender.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time (or as specified in the next sentence in the case of Loans in an Alternative Currency), on the date when due. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and interest on Loans in an Alternative Currency shall be made on the dates specified herein for the pro rata account of the relevant Lenders to which such payment is owed, in such Alternative Currency and in immediately available funds not later than the Applicable Time specified by the Administrative Agent to the Borrower by the same time at least one Business Day prior to the date when due. All payments received by the Administrative Agent (i) after 2:00 p.m., New York City time, on in the due date thereof to case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest and fees thereon. All such payments shall be made to the account of Administrative Agent at its offices at 000 Xxxxxxx Xxxxxxxxxx Xxxx, Ops Xxxxxxxx 0, 0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000-0000 except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.04 shall be made directly to the Lenders, at the Funding Office, in Dollars and in immediately available fundsPersons entitled thereto. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing If at any time insufficient funds are received by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date thereforto pay fully all amounts of principal, interest and fees then due hereunder, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph funds shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available applied (subject to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent to hold and apply amounts to be paid to a Defaulting Lender in accordance with Section 2.15(b)) (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. To the extent necessary, the Administrative Agent shall enter into foreign currency exchange transactions on customary terms to effect any such ratable payment and the payments made by the Administrative Agent following such transactions shall be deemed to be payments made by or on behalf of the Borrower hereunder.
(e) If any Lender shall, by exercising any right of set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate principal amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower or any other Loan Party pursuant to and in accordance with the express terms of this Agreement and the other Loan Documents or any payment obtained by a Lender against as consideration for the Borrowerassignment of or sale of a participation in any of its Loans to any assignee or participant.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages in respect of the Lenders. Any Revolving Credit Loans and any reduction of the Revolving Credit Commitments of the Lenders shall be made pro rata according to the respective Revolving Credit Percentages of the relevant Lenders except (i) Lenders. Each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata according to the respective Revolving Percentages of amounts then due and owing to the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(bi) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made allocated among the Lenders pro rata according to based on the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders.
(ii) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to among the Lenders in such Class pro rata according to based on the respective Revolving Percentages outstanding principal amounts of the relevant Term Loans then held by the Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans in direct order (or, in the case of Incremental Term Loans, as specified in the Incremental Term Loan Amendment for such Incremental Term Loans). Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) The application of any payment of Loans (including mandatory prepayments but excluding optional prepayments) shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. The application of optional prepayments shall be as directed by the Borrower. Each payment of the Loans (except in the case of Base Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Base Rate Loans, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.13(e), 2.13(f), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received by the Administrative Agent or the Issuing Lender for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
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Pro Rata Treatment and Payments. (a) Each borrowing Tranche A-1 Borrowing by the Borrower from the Tranche A-1 Lenders hereunder and hereunder, each payment by the Borrower on account of any the commitment fee shall be made pro rata according payable pursuant to the respective Revolving Percentages of the Lenders. Any Section 2.10(a) and any reduction of the Revolving Tranche A-1 Commitments of the Tranche A-1 Lenders shall be made pro rata according to the respective Revolving Tranche A-1 Percentages of the relevant Tranche A-1 Lenders.
(b) Each Tranche A-2 Borrowing by the Borrower from the Tranche A-2 Lenders except (i) to hereunder, each payment by the extent that this Agreement provides for reductions to be disproportionately allocated to a group Borrower on account of Lenders with respect to a particular Class the commitment fee payable pursuant to Section 2.6, in which case each 2.10(b) and any reduction of the Tranche A-2 Commitments of the Tranche A-2 Lenders shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Tranche A-2 Percentages of the relevant Tranche A-2 Lenders.
(c) Each Tranche B Borrowing by the Borrower from the Tranche B Lenders and (ii) reductions hereunder, each payment by the Borrower on account of the commitment fee payable pursuant to Section 2.9(c), which 2.10(c) and any reduction of the Tranche B Commitments of the Tranche B Lenders shall be allocated as provided in such Sectionmade pro rata according to the respective Tranche B Percentages of the Tranche B Lenders.
(bd) Each payment or prepayment (including prepayments made pursuant to Section 3.01(b) of the Common Agreement, but excluding optional prepayments made pursuant to Section 2.4) made by the Borrower on account of principal of the Working Capital Loans (or any portion thereof) shall be made pro rata according to the respective aggregate outstanding principal amounts of the Working Capital Loans then held by each Working Capital Facility Lender. Each optional prepayment made by the Borrower, pursuant to Section 2.4, on account of principal of the Working Capital Loans (or any portion thereof) shall be made first to the Tranche A-2 Lenders and Tranche B Lenders, pro rata according to the respective aggregate outstanding principal amounts of Tranche A-2 Loans and Tranche B Loans (taken together) then held by each Tranche A-2 Lender and Tranche B Lender and second to the Tranche A-1 Lenders, pro rata according to the respective aggregate outstanding principal amounts of Tranche A-1 Loans then held by each Tranche A-1 Lender. Each payment (including each prepayment) by the Borrower on account of principal of commitment fees payable pursuant to Sections 2.10(a), (b) or (c) and interest on the Revolving Working Capital Loans (or any portion thereof) shall be made pro rata according to the respective aggregate outstanding principal amounts of the Revolving Loans interest and such commitment fees then held by the Lenders (except for prepayments pursuant due and payable to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersWorking Capital Facility Lender.
(ce) Each prepayment by the Borrower pursuant to either Section 2.4 of this Agreement or Section 3.01(b) of the Common Agreement shall be applied to the Working Capital Loans in chronological order of when each such Working Capital Loan was made, with the Working Capital Loan that has been outstanding for the longest period of time being prepaid first.
(f) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.11:00 a.m., New York City time, on the due date thereof to the Working Capital Facility Administrative Agent, for the account of the Working Capital Facility Lenders, at the Funding Office, in Dollars and in immediately available funds. The Working Capital Facility Administrative Agent shall distribute such payments to each relevant Working Capital Facility Lender promptly upon receipt in like funds as received, net of any amounts owing by such Working Capital Facility Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dg) Each reduction of the of the Tranche A-1 Commitments shall be made pro rata according to the respective Tranche A-1 Percentages of each Tranche A-1 Lender; each reduction of the Tranche A-2 Commitments or Tranche B Commitments shall be made pro rata between the Tranche A-2 Commitments and Tranche B Commitments and, within each such tranche, pro rata according to the respective Tranche A-2 Percentages and Tranche B Percentages, as the case may be, of each Tranche A-2 Lender and each Tranche B Lender.
(h) Unless the Working Capital Facility Administrative Agent shall have been notified in writing by any Working Capital Facility Lender prior to a borrowing Working Capital Facility Borrowing that such Working Capital Facility Lender will not make the amount that would constitute its share of such borrowing Working Capital Facility Borrowing available to the Working Capital Facility Administrative Agent, the Working Capital Facility Administrative Agent may assume that such Working Capital Facility Lender is making such amount available to the Working Capital Facility Administrative Agent, and the Working Capital Facility Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Working Capital Facility Administrative Agent by the required time on the Borrowing Date therefor, such Working Capital Facility Lender shall pay to the Working Capital Facility Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Working Capital Facility Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Working Capital Facility Lender makes such amount immediately available to the Working Capital Facility Administrative Agent. A certificate of the Working Capital Facility Administrative Agent submitted to any Working Capital Facility Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Working Capital Facility Lender’s share of such borrowing Working Capital Facility Borrowing is not made available to the Working Capital Facility Administrative Agent by such Working Capital Facility Lender within three (3) Business Days after such Borrowing Date, the Working Capital Facility Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(ei) Unless the Working Capital Facility Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Working Capital Facility Administrative Agent, the Working Capital Facility Administrative Agent may assume that the Borrower is making such payment, and the Working Capital Facility Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Working Capital Facility Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Working Capital Facility Administrative Agent by the Borrower within three (3) Business Days after such due date, the Working Capital Facility Administrative Agent shall be entitled to recover, on demand, from each Working Capital Facility Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Working Capital Facility Administrative Agent or any Working Capital Facility Lender against the Borrower.
Appears in 1 contract
Samples: Working Capital Facility Credit Agreement (Ica Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments shall be made pro rata according to the respective Term Percentages, L/C Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction .
(b) Except as otherwise provided herein, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Commitments of the Lenders Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders except Term Loans then held by the Term Lenders. The amount of each principal prepayment (iwhether optional or mandatory) of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis based upon the respective then remaining principal amounts thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, any prepayment of the Term Loans shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to then outstanding Term Loans on a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages basis regardless of Type. Amounts prepaid on account of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall Term Loans may not be allocated as provided in such Sectionreborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, 10:00 A.M. on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of . Any payment received by the Administrative Agent after 10:00 A.M. shall be deemed received on the next succeeding Business Day and any amounts owing by such Lender pursuant applicable interest or fee shall continue to Section 9.7accrue. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the proposed date of any borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making has made such amount available to the Administrative AgentAgent on such date in accordance with Section 2, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall and the Borrower severally agree to pay to the Administrative Agent forthwith, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to the Borrower but excluding the date of payment to the Administrative Agent, on demandat (i) in the case of a payment to be made by such Lender, such amount with interest thereon, at a rate equal to the greater of (iA) the Federal Funds Effective Rate and (iiB) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive and (ii) in the absence case of manifest error. If such Lender’s share of such borrowing is not a payment to be made available to by the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateBorrower, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, on demandthe 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, from then the Borroweramount 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.
(ef) Unless the Administrative Agent shall have been notified in writing by received notice from the Borrower prior to the date of on which any payment is due to be made by the Borrower Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment to the Administrative Agentpayment, the Administrative Agent may assume that the Borrower is making has made such payment, payment on such date in accordance herewith and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available distribute to the Lenders their respective pro rata shares or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of a corresponding amount. If such payment is not made the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, in accordance with banking industry rules on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rateinterbank compensation. Nothing herein shall be deemed to limit the rights of Administrative Agent or any Lender against any Loan Party.
(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 Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1 or Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(h) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) fund its respective Swingline Participation Amount of any Swingline Loan, and (v) make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.7.
(i) 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.
(j) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(k) If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the principal of or interest on any Loan made by it, its participation in the L/C Exposure or other obligations hereunder, as applicable (other than pursuant to a provision hereof providing for non-pro rata treatment), in excess of its Term Percentage, Revolving Percentage or L/C Percentage, as applicable, of such payment on account of the Loans or participations obtained by all of the Lenders, such Lender shall (a) notify the Administrative Agent of the receipt of such payment, and (b) within five (5) Business Days of such receipt purchase (for cash at face value) from the other Term Lenders, Revolving Lenders or L/C Lenders, as applicable (through the Administrative Agent), without recourse, such participations in the Term Loans or Revolving Loans made by them and/or participations in the L/C Exposure held by them, as applicable, or make such other adjustments as shall be equitable, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of the other Lenders in accordance with their respective Term Percentages, Revolving Percentages or L/C Percentages, as applicable; provided, however, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply). The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.18(k) may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. No documentation other than notices and the like referred to in this Section 2.18(k) shall be required to implement the terms of this Section 2.18(k). The Administrative Agent shall keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased pursuant to this Section 2.18(k) and shall in each case notify the Term Lenders, the Revolving Lenders or the L/C Lenders, as applicable, following any such purchase. The provisions of this Section 2.18(k) shall not be construed to apply to (i) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (ii) the application of Cash Collateral provided for in Section 3.10, or (iii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in any L/C Exposure to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply). The Borrower consents on behalf of itself and each other Loan Party to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation. For the avoidance of doubt, no amounts received by the Administrative Agent or any Lender against from any Guarantor that is not a Qualified ECP Guarantor shall be applied in partial or complete satisfaction of any Excluded Swap Obligations.
(l) Notwithstanding anything to the contrary in this Agreement, the Administrative Agent may, in its discretion at any time or from time to time, without the Borrower’s request and even if the conditions set forth in Section 5.2 would not be satisfied, make a Revolving Loan in an amount equal to the portion of the Obligations constituting overdue interest and fees and Swingline Loans from time to time due and payable to itself, any Revolving Lender, the Swingline Lender or the Issuing Lender, and apply the proceeds of any such Revolving Loan to those Obligations; provided that after giving effect to any such Revolving Loan, the aggregate outstanding Revolving Loans will not exceed the Total Revolving Commitments then in effect.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of the Facility Fee or Letter of Credit fee, and any commitment fee reduction of the Commitments of the Lenders under any Facility, shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders. Any reduction Each payment of interest in respect of the Revolving Commitments Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Credit Lenders. Each payment in respect of interest Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit. Each payment (including each prepayment) by the Borrower on the Revolving account of principal of any Series of Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans in such Series then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Term Loan Lenders.
(c) The application of any payment of Loans under any Facility (including mandatory prepayments but excluding optional prepayments, which shall be applied as directed by the Borrower) shall be made, first, to Base Rate Loans under such Facility and, second, to Term SOFR Loans under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.pm, local time in New York City timeCity, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent Any payment made by the Borrower after 2:00 pm, local time in New York City, on any Business Day shall distribute such payments be deemed to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7have been on the next following Business Day. If any payment hereunder (other than payments on the Eurodollar Term SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing of Loans that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender Xxxxxx is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such LenderXxxxxx’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Base Rate Loans, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) Upon receipt by the Administrative Agent of payments on behalf of Xxxxxxx, the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agent. If and to the extent the Administrative Agent shall not make such payments to a Lender when due as set forth in the preceding sentence, then such unpaid amounts shall accrue interest, payable by the Administrative Agent, at the Federal Funds Rate from the due date until (but not including) the date on which the Administrative Agent makes such payments to such Lender. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8.1(f), or otherwise) (the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Lender Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by of Revolving Loans and any reduction of the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee Revolving Commitments shall be made pro rata PRO RATA according to the respective Revolving Commitment Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders Each payment under this Agreement or any Note shall be made pro rata according applied, first, to any fees then due and owing by the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class Borrower pursuant to Section 2.6, second, to interest then due and owing in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages respect of the relevant Lenders Notes of the Borrower and, third, to principal then due and (ii) reductions owing hereunder and under the Notes of the Borrower. Each payment on account of any fees pursuant to Section 2.9(c), which 2.6 shall be allocated made PRO RATA in accordance with the respective amounts due and owing (except as provided in such Section.
(b) to the portion of the Letter of Credit retained by the Issuing Lender, the Issuing Lender Fees and fees payable to the Agents). Each payment (including each prepaymentother than prepayments) by the Borrower on account of principal of and interest on the Revolving Loans Loans, the Tranche A Term Loan and/or the Tranche B Term Loan shall be made pro rata PRO RATA according to the respective outstanding amounts due and owing first to Alternate Base Rate Loans and then to LIBOR Rate Loans in the direct order of Interest Period maturities. Each optional prepayment on account of principal amounts of the Revolving Loans then held by the Lenders (except for shall be applied as set forth in Section 2.8(a); PROVIDED, that prepayments made pursuant to Section 2.9(c), which 2.16 shall be allocated as provided applied in accordance with such Section)section. Each payment mandatory prepayment on account of interest on principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, applied in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) accordance with Section 2.8(b). All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, interest and fees or otherwise, shall be made without setoff defense, set-off or counterclaim (except as provided in Section 2.19(b)) and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, Agent for the account of the Lenders, Lenders at the Funding Office, Administrative Agent's office specified on SCHEDULE 9.2 in Dollars and in immediately available fundsfunds not later than 2:00 P.M. (Charlotte, North Carolina time) on the date when due. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled thereto promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar LIBOR Rate Loans) 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. If any payment on a Eurodollar LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and (other than with respect to Foreign Currency Loans), each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to Lenders. Each payment by any Borrower of the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders Foreign Currency Participation Fee with respect to any Foreign Currency Loan made in a particular Class pursuant to Section 2.6, in which case each reduction Foreign Currency shall be allocated to made pro rata among the Revolving Lenders that are Foreign Currency Loan Participants in respect of Foreign Currency Loans made in such Class pro rata according to the Foreign Currency in accordance with their respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionForeign Currency Participating Interests.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied, within each Tranche A Term Facility, (i) first to scheduled installments of the Tranche A Term Loans occurring within the next 12 months in direct order of maturity and (ii) thereafter, to reduce the then remaining installments of the Tranche A Term Loans pro rata based upon the respective then remaining principal amounts thereof. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on the Tranche A Term Loans shall be made pro rata according to the respective principal amounts of the Tranche A Term Loans then held by the Tranche A Term Lenders. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which d) Each borrowing by any Borrower of Foreign Currency Loans in any particular Foreign Currency shall be allocated as provided made among the Foreign Currency Lenders with respect to such Foreign Currency, with the Foreign Currency Loan of each such Foreign Currency Lender (other than the Fronting Lender) to be in an amount equal to its Revolving Percentage of the applicable borrowing and the Foreign Currency Loan of the Fronting Lender to be in an amount equal to the aggregate amount of such Section)borrowing less the amount of the Foreign Currency Loans being made by other Foreign Currency Lenders and comprising part of such borrowing. Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant applicable Foreign Currency Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on, or the fronting fee with respect to the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. Other than as set forth in Section 2.10(d), all payments (including prepayments) to be made by any Borrower hereunder on account of principal or interest on, or the fronting fee with respect to the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Foreign Currency Agent, for the account of the applicable Foreign Currency Lenders (or, with respect to the fronting fee, the Fronting Lender), at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent or the Foreign Currency Agent, as applicable, shall distribute such payments to each relevant Lender or Fronting Lender, as the case may be, promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the applicable Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.11, 2.18(e), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender, any Fronting Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages, Revolving Credit Percentages or Incremental Revolving Credit Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders (except as otherwise provided in Section 2.18(d)). Except as otherwise provided in Section 2.11, as among the Term Loans, prepayments shall be applied 75% ratably to the respective remaining installments thereof and 25% in the direct order to the respective next four installments thereof (or, to the extent that the aggregate principal amount of the next four installments of the Term Loan Facility is less than such 25%, the excess shall be applied ratably to the respective remaining installments thereof). Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Incremental Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Incremental Revolving Credit Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Incremental Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Credit Lenders.
(cd) Notwithstanding anything to the contrary in Section 2.12 or 2.18, so long as any Revolving Credit Loans are outstanding, each Term Loan Lender may, at its option, decline up to 100% of the portion of any mandatory payment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term Loans (such amounts, the "Term Loan Prepayment Amount"), at any time when Revolving Credit Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans, on the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the Prepayment Date (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Term Loan Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"), and such amount shall be applied to reduce the Term Loan Prepayment Amounts, with respect to each Accepting Lender and (ii) the Borrower shall pay to the Administrative Agent an amount equal to 100% of the portion of the Term Loan Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Revolving Credit Loans without a reduction in the Revolving Credit Commitments.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.18(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility (in lieu of interest otherwise provided for hereunder), on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Nebraska Book Co)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower of Five-Year Loans, Term Loans, New Term Loans and New Term III Loans from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Five-Year Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages Five-Year Commitment Percentages, Term Percentage, New Term Percentage or New Term III Percentage, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction payment (including each prepayment) by the Borrower on account of principal of and interest on the Five-Year Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving outstanding principal amounts of the Five-Year Loans then held by the Five-Year Lenders. Each borrowing of Five-Year Loans from the Lenders hereunder, each payment by the Borrower on account of any fee hereunder and, subject to the last sentence of Section 2.4, any reduction of the Five-Year Loans of the Lenders shall be made pro rata according to the Five-Year Commitment Percentages of the relevant Lenders Lenders. Each payment by the Borrower on account of principal of and (ii) reductions pursuant to Section 2.9(c), which interest on any Borrowing of Competitive Loans shall be allocated as provided made pro rata among the Lenders participating in such Section.
(b) Borrowing according to the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving (i) Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders Term Lenders, (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving ii) New Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving New Term Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving New Term Lenders and (iii) New Term III Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Term III Loans then held by the New Term III Lenders. The amount of each principal prepayment of the (x) Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis, (y) New Term Loans shall be applied to reduce the then remaining installments of the New Term Loans on a pro rata basis and (z) New Term III Loans shall be applied to reduce the then remaining installments of the New Term III Loans on a pro rata basis. Amounts prepaid on account of Term Loans, New Term Loans and New Term III Loans may not be reborrowed.
(cb) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, recoupment or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAdministrative Agent’s office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by the Borrower to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next 55 Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar EurodollarTerm Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar EurodollarTerm Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective daily average NYFRB Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such LenderXxxxxx’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Borrower against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective NYFRB Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Percentages, Tranche B Term Percentages, US$ Revolving Percentages or Multicurrency Revolving Percentages, as the case may be, of the relevant Lenders except (i) Lenders. Any reduction of the Revolving Commitments shall be applied ratably to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to US$ Revolving Commitments and the Lenders in such Class pro rata according to the respective Multicurrency Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionCommitments.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders (except as otherwise provided in Section 2.11(e)). The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, pro rata based upon the then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans under a particular Facility shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in under such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersFacility.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City timeLocal Time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars or the relevant Alternative Currency and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationcompensation (or, in the case of Dollar-denominated Loans, if greater, the Federal Funds Effective Rate) for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans (or, in the case of Alternative Currency Loans, the relevant rate applicable thereto) under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate (or, in the case of Alternative Currency Loans, the Cost of Funds Rate). Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments shall be made pro rata according to the respective Term Percentages, L/C Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction .
(b) Except as otherwise provided herein, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Commitments of the Lenders Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders except Term Loans then held by the Term Lenders. The amount of each principal prepayment (iwhether optional or mandatory) of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis based upon the respective then remaining principal amounts thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, any prepayment of the Term Loans shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to then outstanding Term Loans on a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages basis regardless of Type. Amounts prepaid on account of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall Term Loans may not be allocated as provided in such Sectionreborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, 10:00 A.M. on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of . Any payment received by the Administrative Agent after 10:00 A.M. shall be deemed received on the next succeeding Business Day and any amounts owing by such Lender pursuant applicable interest or fee shall continue to Section 9.7accrue. If any payment hereunder (other than payments on the Eurodollar EurodollarSOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar EurodollarSOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the proposed date of any borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making Xxxxxx has made such amount available to the Administrative AgentAgent on such date in accordance with Section 2, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall and the Borrower severally agree to pay to the Administrative Agent forthwith, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to the Borrower but excluding the date of payment to the Administrative Agent, on demandat (i) in the case of a payment to be made by such Lender, such amount with interest thereon, at a rate equal to the greater of (iA) the Federal Funds Effective Rate and (iiB) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive and (ii) in the absence case of manifest error. If such Lender’s share of such borrowing is not a payment to be made available to by the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateBorrower, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, on demandthe 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, from then the Borroweramount 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.
(ef) Unless the Administrative Agent shall have been notified in writing by received notice from the Borrower prior to the date of on which any payment is due to be made by the Borrower Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment to the Administrative Agentpayment, the Administrative Agent may assume that the Borrower is making has made such payment, payment on such date in accordance herewith and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available distribute to the Lenders their respective pro rata shares or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of a corresponding amount. If such payment is not made the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, in accordance with banking industry rules on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rateinterbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Loan Party.
(g) If any Lender makes available to the BorrowerAdministrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1 or Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(h) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) fund its respective Swingline Participation Amount of any Swingline Loan, and (v) make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.7.
(i) 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.
(j) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit Accommodation fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages of Credit Percentages, as the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) of the Term Loans shall be allocated among the Term Loan Lenders holding such Term Loans pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders, and shall be applied to the installments of such Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit Accommodation shall be allocated made as provided in Section 3.01.
(d) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made, first, to Base Rate Loans under such Section)Facility and, second, to Eurodollar Loans under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid. Except as otherwise expressly provided in this Agreement:
(i) Upon the occurrence and during the continuance of an Event of Default, Borrower irrevocably waives the right to direct the application of any and all payments at any time or times received by Administrative Agent from or on behalf of Borrower or any Loan Party of all or any part of the Obligations in accordance to Section 2.16(d)(iii) below, and Administrative Agent shall have the continuing and exclusive right to apply and to reapply any and all such payments received at any time or times against the Obligations in such manner as Administrative Agent may deem advisable notwithstanding any previous application by Administrative Agent or the Lenders;
(ii) so long as no Event of Default exists, the proceeds of any sale of, or other realization upon, all or any part of the Collateral and all payments and distributions made by any Loan Party with respect to the Obligations, shall be applied: first, to all fees, costs, indemnities and expenses incurred by or owing to Administrative Agent, with respect to this Agreement, the other Loan Documents or the Collateral; second, to all fees, costs, indemnities and expenses incurred by or owing to any Lender with respect to this Agreement, the other Loan Documents, or the Collateral; third, to accrued and unpaid interest on the Revolving Loans shall be made pro rata according Credit Loans; fourth, to reduce the respective outstanding principal amounts amount of the Revolving Credit Loans; fifth, to accrued and unpaid interest on the Term Loans; sixth, to principal installments due on the Term Loans then held in inverse order of maturity; and seventh, to any other indebtedness or obligations of Borrower or other Loan Party owing to Administrative Agent, any Lender or any Qualified Counterparty under the Loan Documents or with respect to any Specified Hedge Agreements, including without limitation fees, costs, indemnities and expenses thereunder; and
(iii) following the occurrence and during the continuance of an Event of Default, all payments and proceeds of Collateral shall be applied: first, to all fees, costs, indemnities and expenses incurred by or owing to Administrative Agent, with respect to this Agreement, the Lendersother Loan Documents or the Collateral; second, except to all fees, costs, indemnities and expenses incurred by or owing to any Lender with respect to this Agreement, the other Loan Documents, or the Collateral; third, to accrued and unpaid interest on the Revolving Credit Loans (including any interest which but for the provisions of the Bankruptcy Code, would have accrued on such amounts); fourth, to the extent that this Agreement provides that different Classes outstanding principal balance of the Revolving Credit Loans shall (including cash collateralizing any Letter of Credit Accommodations) until the same have different Applicable Marginsbeen paid in full (and all Letter of Credit Accommodations have been cash collateralized in the amount of 105% thereof); fifth, to accrued and unpaid interest on the Term Loans; sixth, to principal installments due on the Term Loans in which case each payment inverse order of maturity; and seventh, to any other indebtedness or obligations of Borrower or other Loan Party owing to Administrative Agent, any Lender or any Qualified Counterparty under the Loan Documents or with respect to any Specified Hedge Agreements, including without limitation fees, costs, indemnities and expenses thereunder. Any balance remaining shall be allocated delivered to the Lenders in whomever may be lawfully entitled to receive such Class pro rata according to the respective Revolving Percentages balance or as a court of the relevant Lenderscompetent jurisdiction may direct.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 2 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. Any payment made by the Borrower after 2:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Loan Commitments or Revolving Percentages Commitments, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Term Loan Lenders (except for as otherwise provided in Section 2.15(d)). In the event of any optional or mandatory prepayment of Term Loans made at a time when both Term Loans made on the Closing Date and Incremental Term Loans remain outstanding, the aggregate amount of such prepayment shall be allocated between such Loans pro rata based on the aggregate principal amount of outstanding Loans of each such type. Any prepayment of Term Loans shall be applied (i) in the case of prepayments made pursuant to Section 2.9(c)2.8, which shall to reduce the remaining scheduled repayments of Term Loans as directed by the Borrower and (ii) in the case of prepayments made pursuant to Section 2.9, (A) first, to reduce, in direct order of maturity, the scheduled repayments of the Term Loans on the two consecutive scheduled payment dates next following the date of such prepayment unless and until each such scheduled repayment has been eliminated as a result of reductions hereunder and (B) second, to reduce ratably the remaining scheduled repayments of the Term Loans. Amounts repaid or prepaid on account of the Term Loans may not be allocated as provided in such Section). reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) Notwithstanding anything to the contrary in this Agreement, with respect to the amount of any mandatory prepayment of the Term Loans pursuant to Section 2.9, that is allocated to Term Loans (such amount, the “Term Loan Prepayment Amount”), at any time when Revolving Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans, on the date specified in Section 2.9 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the date (each a “Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the relevant Term Loan Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted prepayment as described in the Prepayment Option Notice and (ii) the Borrower shall pay to the Revolving Lenders an amount equal to the portion of the Term Loan Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Revolving Loans (and a permanent reduction of the Revolving Commitments).
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(h) If and whenever any Event of Default has occurred and is continuing, unless this Agreement expressly provides that such payment or amount shall be allocated to a particular Lender or to the Lenders under a particular Facility, the Administrative Agent shall apply all payments made by or on behalf of the Borrower or any Guarantor and all or any part of Proceeds (as defined in the Security Documents) constituting Collateral in payment of the Obligations in the following order: first, to unpaid and unreimbursed costs, expenses and fees of the Administrative Agent, in its capacity as such (including to reimburse ratably any other Lender (or its Affiliates) which has advanced any of the same to the Administrative Agent), second, to the Administrative Agent, for application by it toward payment of all amounts then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Lenders (or their Affiliates) according to the amount of the Obligations then due and owing and remaining unpaid to the Lenders (or their Affiliates), and third, to the Administrative Agent, for application by it toward prepayment of the Obligations, pro rata among the Lenders (or their Affiliates) according to the amount of the Obligations then held by the Lenders (or their Affiliates). Any balance of such Proceeds remaining after the Obligations have been paid in full and all commitments to extend credit under the Loan Documents have terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments or the Total Tranche B-1 Credit Linked Deposit Amount shall be made pro rata according to the respective applicable Revolving Percentages of or Tranche B-1 Percentages, as the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest and premium, if any, on the Tranche B Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Tranche B Term Loans then held by the Tranche B Term Lenders. The amount of each principal prepayment of the Tranche B Term Loans shall be applied to reduce the then remaining installments of the Tranche B Term Loans in the direct order of maturity. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans under a Revolving Facility shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in under such Section)Revolving Facility. Each payment (including each prepayment) by the Borrower on account of principal of and interest and premium, if any, on the Revolving Tranche B-1 Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Tranche B-1 Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Tranche B-1 Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders (or, in the case of payments in respect of U.K. Swingline Loans, prior to 12:00 Noon, London time, on the due date thereof to the applicable Swingline Lender), at the Funding Office, in Dollars and in immediately available funds. The Subject to Section 2.4, the Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Tenneco Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Percentages, Tranche C Term Percentages, Tranche D Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except Lenders.
(ib) to the extent that this Agreement provides Except for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class payments made pursuant to Section 2.62.7, in which case each reduction payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Term Loans then held by the Term Lenders and (iiexcept as otherwise provided in Section 2.17(c)). The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche B Term Loans, Tranche C Term Loans or Tranche D Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) reductions Notwithstanding anything to the contrary in this Agreement, with respect to any mandatory prepayment pursuant to Section 2.9(c2.11(b) in connection with any 30% Application Transaction (as defined in said Section) and any prepayment pursuant to Section 2.11(e), each Term Lender shall have the right to reallocate any prepayment allocated to any of its Term Loans to any of its other Term Loans, as designated by such Lender to the Administrative Agent. Accordingly, in the case of prepayments pursuant to Section 2.11(b), the date on which shall any such prepayment is required to be allocated as provided made may be extended by the Administrative Agent to the extent necessary to determine the manner in which the Term Lenders wish to have such Sectionprepayment allocated.
(bd) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata to the Revolving Lenders according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Lenders. Each payment (including each prepayment) by the Borrower to the Tranche D LC Lenders on account of the Tranche D LC Reimbursement Amount and interest thereon and payments of interest on or earnings in respect of the Revolving Loans Tranche D Credit-Linked Deposit shall be made pro rata to the Tranche D LC Lenders according to the their respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersTranche D LC Percentages.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Subject to Section 2.31, (i) each borrowing by the any Borrower of Dollar Revolving Loans from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Borrowing Percentages of the relevant Lenders. Any , (ii) each payment by any Borrower on account of any facility fee and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except and (iiii) to each borrowing by any Borrower of Multicurrency Loans from the extent that this Agreement provides for reductions to be disproportionately allocated to a group Multicurrency Lenders hereunder and any reduction of the Multicurrency Subcommitments of the Multicurrency Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Multicurrency Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionMulticurrency Lenders.
(b) Each Subject to Section 2.31, (i) each payment (including each prepayment) by the any Borrower on account of principal of and interest on the Dollar Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Dollar Revolving Loans then held by the Lenders and (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each ii) each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Multicurrency Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Multicurrency Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Multicurrency Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunderany Borrower, whether on account of principal, interest, fees or otherwise, shall be made without deduction for any defense, recoupment, setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the its Funding Office, in Dollars (based on the Dollar Equivalent thereof in the case of fees payable under Section 2.14(b) with respect to Letters of Credit denominated in Foreign Currencies) and in immediately available funds (or, in the case of principal or interest relating to Multicurrency Loans, prior to 3:00 P.M., London time, on the due date thereof to the Administrative Agent, for the account of the Multicurrency Lenders, at its Funding Office, in the relevant Foreign Currency and in immediately available funds). The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined Overnight Rate, plus any applicable administrative, processing or similar fees customarily charged by the Administrative Agent in accordance connection with banking industry rules on interbank compensationthe foregoing, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the applicable Borrower or (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate determined by the Administrative Agent to be the cost to it of funding such amount, on demand, from the applicable Borrower. If the applicable 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 such Borrower the amount of such interest paid by 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 such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. Any notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error.
(e) Unless the Administrative Agent shall have been notified in writing by the applicable Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the applicable Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Overnight Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerBorrowers or any of them. Any notice of the Administrative Agent to any Borrower with respect to any amount owing under this subsection shall be conclusive, absent manifest error.
(f) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit, Swingline Loans and Euro Swingline Loans and to make payments pursuant to Section 8.7 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 8.7 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 Loans, to purchase its participation or to make its payment under Section 8.7.
(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 Section 2, 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 Section 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.
(h) 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.
Appears in 1 contract
Samples: Credit Agreement (Kennametal Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on thea Class of Term Loans shall be made pro rata according to the respective principal amounts of thesuch Class of Term Loans then held by the Term Lenders and shall be applied to the installments of the Term Loans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loans held by the Term Lenders of such Class. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts L/C Foreign Currency would exceed the Foreign Currency Sublimit. Each Letter of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans Credit shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate be denominated in Dollars or another L/C Foreign Currency and (ii) a rate determined by expire no later than the Administrative Agent in accordance with banking industry rules on interbank compensation, for earlier of (x) the period until such Lender makes such amount immediately available to first anniversary of its date of issuance and (y) the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing date that is not made available to the Administrative Agent by such Lender within three (3) five Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the Initial Maturity Date, provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above) and (B) clause (x) above shall not apply to a Letter of Credit if such long-dated Letter of Credit is consented to by the applicable Issuing Lender (but with an expiration date of any payment due no longer than two years after the date of issuance, which shall in no event extend beyond the date referred to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three clause (3y) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrowerabove).
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and (other than with respect to Foreign Currency Loans), each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to Lenders. Each payment by the extent that this Agreement provides for reductions to be disproportionately allocated to a group Borrower of Lenders the Foreign Currency Participation Fee with respect to any Foreign Currency Loan made in a particular Class Foreign Currency shall be made pro rata among the Revolving Lenders that are Foreign Currency Loan Participants in respect of Foreign Currency Loans made in such Foreign Currency in accordance with their respective Foreign Currency Participating Interests.
(b) Each payment (including each prepayment pursuant to Section 2.6, in which case each reduction 2.12 but excluding any prepayment pursuant to Section 2.11) by the Borrower on account of principal of and interest on the Term Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied, within each Term Facility, (i) first to scheduled installments of the Tranche A Term Loans occurring within the next 12 months in direct order of maturity and (ii) reductions thereafter, to reduce the then remaining installments of the Tranche A Term Loans pro rata based upon the respective then remaining principal amounts thereof. Each prepayment pursuant to Section 2.9(c), which 2.11 by the Borrower on account of principal of and interest on the Tranche A Term Loans shall be allocated as provided in such Sectionmade pro rata according to the respective principal amounts of the Tranche A Term Loans then held by the Tranche A Term Lenders. Amounts prepaid on account of the Term Loans may not be reborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which d) Each borrowing by the Borrower of Foreign Currency Loans in any particular Foreign Currency shall be allocated as provided made among the Foreign Currency Lenders with respect to such Foreign Currency, with the Foreign Currency Loan of each such Foreign Currency Lender (other than the Fronting Lender) to be in an amount equal to its Revolving Percentage of the applicable borrowing and the Foreign Currency Loan of the Fronting Lender to be in an amount equal to the aggregate amount of such Section)borrowing less the amount of the Foreign Currency Loans being made by other Foreign Currency Lenders and comprising part of such borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant applicable Foreign Currency Lenders.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on, or the fronting fee with respect to the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. Other than as set forth in Section 2.10(d), all payments (including prepayments) to be made by the Borrower hereunder on account of principal or interest on, or the fronting fee with respect to the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Foreign Currency Agent, for the account of the applicable Foreign Currency Lenders (or, with respect to the fronting fee, the Fronting Lender), at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent or the Foreign Currency Agent, as applicable, shall distribute such payments to each relevant Lender or Fronting Lender, as the case may be, promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.11, 2.18(e), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender, any Fronting Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective principal amounts of the Term Loans then held by the Term Lenders and shall be applied to the installments of the Term Loans as elected by the Parent Borrower. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of applicable Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments) to be made by any Borrower hereunder on account of principal or interest on the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to ABR Loansthe greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent, on demand, from the applicable Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the greater of (i) the daily average Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the such Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Initial Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower Company on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Term Lenders. The amount of each mandatory principal prepayment of the Term Loans shall be allocated applied, first, to reduce the then remaining installments of the Initial Term Loans and Incremental Term Loans, as provided the case may be, occurring within the next 12 months, in such Section)direct order of maturity, and second, to reduce the remaining respective installments thereof, in each case pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the applicable Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the a Borrower hereunderhereunder in respect of amounts denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments to be made by a Borrower hereunder with respect to principal and interest on Revolving Loans denominated in Alternative Currencies shall be made without set off or counterclaim and shall be made prior to 12:00 noon, Local Time (or, with respect to any Revolving Loan denominated in Swiss Francs, 8:00 A.M., Local Time), on the due date thereof to the Administrative agent, for the account of the Lenders, in the city of the Administrative Agent’s Applicable Payment Office for the applicable currency, in the Alternative Currency with respect to which such Revolving Loan is denominated and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing Borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the applicable Term Loans then held by the applicable Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Term Lenders and shall be applied to the installments of the Term Loans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loans held by the Term Lenders of such Class. Amounts prepaid on account of the Term Loans may not be reborrowed. Without limiting the generality of the foregoing, the provisions of this clause (b) shall not be construed to apply to any repayment of Escrow Debt made to the applicable Lenders that provided such Escrow Debt from the amounts held in the applicable escrow account, and such repaid amounts shall be made pro rata according to the respective outstanding principal amounts of the applicable Escrow Debt then held by the applicable Lender of such Escrow Debt.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of applicable Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.1:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments) to be made by any Borrower hereunder on account of principal or interest on the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.79.8. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans, RFR Loans or Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan, RFR Loan or Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing the Borrowing Date (or, in the case of any Borrowing of RFR Loans or ABR Loans, prior to 3:00 p.m., New York City time, on the Borrowing Date) that such Lender will not make the amount that would constitute its share of such borrowing Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the period until date such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing Borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to ABR Loansthe greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent, on demand, from the applicable Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the greater of (i) the daily average Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.8, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(i) With respect to any payment that the Administrative Agent makes for the account of the Lenders or any Issuing Lender hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such Issuing Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata PRO RATA according to the respective Tranche B Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except Lenders. Subject to Section 2.18(c), each payment (iother than prepayments as set forth in Sections 2.18 (b), (c)) in respect of principal or interest in respect of the Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to a group amounts of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated such obligations owing to the Lenders in such Class pro rata PRO RATA according to the respective Revolving Percentages amounts then due and owing to the Lenders. The application of the relevant Lenders and (ii) reductions any prepayment pursuant to this Section 2.9(c), which 2.18 shall be allocated as provided in such Sectionmade, FIRST, to Base Rate Loans and, SECOND, to Eurodollar Loans.
(b) Each optional prepayment made pursuant to Section 2.11 and each mandatory prepayment required by Section 2.12 (other than prepayments required by Section 40 2.12(c)) shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans PRO RATA based on the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans PRO RATA based on the remaining outstanding principal amount of such installments. Each mandatory prepayment required by Section 2.12(c) shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans based upon the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans in inverse order of maturity. Amounts prepaid on account of the Tranche B Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata PRO RATA according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Credit Lenders. Each payment in respect of interest on the Revolving Loans Reimbursement Obligations in connection with any Letter of Credit shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersIssuing Lender.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) Each prepayment of Tranche B Term Loans (other than (A) an optional prepayment pursuant to Section 2.11 made with proceeds not required to be used to prepay the Loans pursuant to Section 2.12(a) and (b) and (B) a mandatory prepayment pursuant to Section 2.12(c)) shall be accompanied by a prepayment premium equal to (i) if such prepayment is made on or prior to the first anniversary of the Closing Date, 2.00% of the principal amount of such prepayment and (ii) if such prepayment is made after the first anniversary of the Closing Date and through the second anniversary of the Closing Date, 1.00% of the principal amount of such prepayment.
Appears in 1 contract
Samples: Credit Agreement (Tsi Finance Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the Parent Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepaymentprepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in inverse order of maturity. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective principal amounts of the Term Loans then held by the Term Lenders and shall be applied to the installments of the Term Loans as elected by the Parent Borrower. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans (other than Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on the Revolving Loans any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans such Foreign Currency Loan then held by the Lenders, except to the extent that this Agreement provides that different Classes of applicable Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments) to be made by any Borrower hereunder on account of principal or interest on the Foreign Currency Loans shall be made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the due date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to ABR Loansthe greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent, on demand, from the applicable Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the any Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the greater of (i) the daily average Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (ai) Each borrowing of Loans by the Borrower from the Lenders hereunder and shall be made pro rata according to the Term Loan Percentages or Revolving Credit Commitment Percentages, as applicable, of the relevant Lenders in effect on the date of such borrowing.
(ii) Each payment (including each payment prepayment) by the Borrower Borrower, on account of any commitment fee principal of and interest on the Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the Term Loans then held by the Term Lenders. Any reduction The amount of each principal prepayment of the Revolving Commitments Term Loans shall be applied in inverse order of maturity to reduce the then remaining installments of the Lenders shall be made Term Loans pro rata according to based upon the respective Revolving Percentages then outstanding principal amounts thereof. Amounts prepaid on account of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to Term Loans may not be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionreborrowed.
(biii) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Lenders.
(except for prepayments pursuant to Section 2.9(c), which iv) Each payment by the Borrower on account of any commitment fee hereunder shall be allocated as provided in such Section). Each payment of interest on by the Administrative Agent among the Revolving Loans Lenders pro rata in accordance with the Revolving Credit Commitment Percentages of the Lenders as of such date.
(v) Any reduction of the Revolving Credit Commitments of the Lenders shall be made allocated by the Administrative Agent among the Lenders pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Credit Commitment Percentages of the relevant LendersLenders on the date of such reduction.
(cvi) All payments (including prepayments) to be made by the Borrower in respect of Loans hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders entitled thereto, at the Funding OfficeAdministrative Agent’s office specified in Section 10.2, in U.S. Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled to receive the same promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. .
(vii) If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, the maturity of 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. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof of 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) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(db) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing Borrowing Date that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent Borrower shall also be entitled to recover repay such amount Lender’s share of such borrowing (together with interest thereon from the date such amount was made available to the Borrower) at the rate per annum applicable to ABR Loans, on demand, Base Rate Loans hereunder to the Administrative Agent not later than three (3) Business Days after receipt of written notice from the BorrowerAdministrative Agent specifying such Lender’s share of such borrowing that was not made available to such Administrative Agent, and the Borrower shall have the right to pursue any remedies against such Lender for its failure to make its portion of such borrowing available.
(ec) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the a date of any on which a payment is due to be made by from the Borrower hereunder that the Borrower will not make such payment available to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such paymentamount available to the Administrative Agent, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the applicable Lenders their respective pro rata shares of a corresponding amount. If such payment amount is not made available to the Administrative Agent by the Borrower within three (3) Business Days after such required time on the due datedate therefor, each applicable Lender shall pay to the Administrative Agent shall be entitled to recoverAgent, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the a rate per annum equal to the daily average Federal Funds Effective RateRate for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error.
(d) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (c) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:
(1) 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
(2) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the Borroweramount of such participation.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by of Revolving Loans and any reduction of the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee Revolving Commitments shall be made pro rata according to the respective Revolving Commitment Percentages of the Lenders. Any reduction Each payment under this Agreement or any Note shall be applied, first, to any fees then due and owing by the Borrowers pursuant to Section 3.1, second, to interest then due and owing in respect of the Revolving Commitments Notes of the Lenders Borrowers and, third, to principal then due and owing hereunder and under the Notes of the Borrowers. Each payment on account of any fees pursuant to Section 3.1 shall be made pro rata according in accordance with the respective amounts due and owing (except as to the respective Revolving Percentages portion of the relevant Lenders except (i) Letter of Credit Fee retained by the Issuing Lender, the Issuing Lender Fees and fees payable to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(cAdministrative Agent), which shall be allocated as provided in such Section.
(b) . Each payment (including each prepaymentother than prepayments) by the Borrower Borrowers on account of principal of and interest on the Revolving Loans and on the Term Loans shall be made pro rata according to the respective outstanding amounts due and owing in accordance with Section 3.3(a) hereof. Each optional prepayment on account of principal amounts of the Revolving Loans then held by shall be applied to such of the Lenders Loans as the applicable Borrower may designate (except for to be applied pro rata among the Lenders); provided, that prepayments made pursuant to Section 2.9(c), which 3.13 shall be allocated as provided applied in accordance with such Section)section. Each payment mandatory prepayment on account of interest on principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, applied in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) accordance with Section 3.3(b). All payments (including prepayments) to be made by the Borrower hereunder, whether Borrowers on account of principal, interest, interest and fees or otherwise, shall be made without setoff defense, set-off or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, Agent for the account of the Lenders, Lenders at the Funding Office, Administrative Agent's Office in Dollars and in immediately available fundsfunds not later than 2:00 P.M. (Charlotte, North Carolina time) on the date when due. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled thereto promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar LIBOR Rate Loans) 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. If any payment on a Eurodollar LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Horizon Personal Communications Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower of Revolving Credit Loans from the Lenders hereunder and hereunder, each payment by the Borrower Gannett on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages 364-Day Commitments or Five-Year Commitments, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Each payment (including each prepayment) by the Borrower Gannett on account of principal of and interest on the Revolving 364-Day Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving 364-Day Loans then held by the Lenders Lenders, and each payment (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment including each prepayment) by Gannett on account of principal of and interest on the Revolving Five-Year Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Five-Year Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes . Each payment by Gannett on account of Revolving principal of and interest on any Borrowing of Competitive Loans shall have different Applicable Margins, in which case each payment shall be allocated to made pro rata among the Lenders participating in such Class pro rata Borrowing according to the respective Revolving Percentages principal amounts of the relevant Lenderstheir outstanding Competitive Loans comprising such Borrowing.
(cb) All payments (including prepayments) to be made by the Borrower Gannett hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City Dallas, Texas time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAgent’s office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by Gannett to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Gannett a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from Gannett. Nothing herein shall be deemed to limit the Borrowerrights of Gannett against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower Gannett prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower Gannett will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower Gannett is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower Gannett within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerGannett.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower Borrowers from the Lenders hereunder and hereunder, each payment by the Borrower Borrowers on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made on a pro rata basis according to the respective Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower Borrowers on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders Term Lenders. The amount of each (except for prepayments x) voluntary principal prepayment of the Term Loans pursuant to Section 2.9(c), which 2.10 shall be allocated applied first to reduce in direct order the next four scheduled amortization payments thereunder immediately following the date of such prepayment unless and until such amortization payments have been eliminated as provided a result of such reductions and, thereafter to the remaining amortization installments of the Term Loans, pro rata based upon the respective then remaining principal amounts thereof, and (y) mandatory principal prepayment of the Term Loans shall be applied first to reduce the then remaining installments of the Term Loans in such Section)the inverse order of maturity, pro rata based upon the respective then remaining principal amounts thereof. Amounts paid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrowers on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.710.5. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the BorrowerBorrowers.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower Borrowers prior to the date of any payment due to be made by the Borrower Borrowers hereunder that the Borrower Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower Borrowers within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerBorrowers.
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower Company from the Lenders hereunder and Lenders, each conversion of a Loan pursuant to Section 3.01(e) or continuation of a Loan pursuant to Section 3.01(f), each payment by the Borrower Company on account of any commitment fee (other than with respect to fees for the account of the Administrative Agent and the Issuing Lender described in Section 3.04, reimbursements by the Company to the Issuing Lender with respect to drawings under Letters of Credit pursuant to Section 2.06 and payments to the Swingline Lender of Swingline Loans) and any reduction of the Revolving Credit Commitments of the Lenders hereunder shall be made pro rata according to the respective Revolving Percentages Commitment Proportions of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Each payment (including each prepayment) by the Borrower Company on account of principal of the Revolving Loans and interest on each Loan shall be made pro rata according to the respective outstanding principal amounts of the Revolving such Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)each Lender. Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether Company on account of principal, interest, fees or otherwise, and reimbursement obligations shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, Lenders (except as specified in Sections 2.06(e) and Section 3.04) at the Funding Office, Payment Office of the Administrative Agent in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net by wire transfer of any amounts owing by each Lender’s portion of such payment to such Lender pursuant for the account of its lending office. The Administrative Agent may, in its sole discretion, directly charge principal and interest payments due in respect of the Loans to Section 9.7the Company’s accounts at the Payment Office or other office of the Administrative Agent. If The Issuing Lender may, in its sole discretion, directly charge reimbursement obligations with respect to Letters of Credit to the Company’s accounts at any office of the Issuing Lender. Except as otherwise provided in the definition of “Interest Period”, if any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended and, with respect to the next succeeding Business Day unless the result payments of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(db) Unless the Administrative Agent shall have been notified in writing by If any Lender prior shall fail to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available any payment required to the Administrative Agentbe made by it pursuant to Section 2.05(c), the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent2.06(d) or (e), and 3.11(b) or 9.05, then the Administrative Agent may, in reliance upon such assumptionits discretion and notwithstanding any contrary provision hereof, make available to the Borrower a corresponding amount. If such amount is not made available to (i) apply any amounts thereafter received by the Administrative Agent by for the required time on the Borrowing Date therefor, account of such Lender shall pay to for the benefit of the Administrative Agent, on demandthe Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amount with interest thereonamounts in a segregated account as cash collateral for, at a rate equal to and application to, any future funding obligations of such Lender under any such Section, in the greater case of each of clauses (i) the Federal Funds Effective Rate and (ii) a rate above, in any order as determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrowerits reasonable judgment.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (ai) Each borrowing by the Borrower from ------------------------------- the Lenders hereunder and each payment by the Borrower on account of under any commitment fee Facility shall be made pro rata according to the --- ---- respective Revolving Commitment Percentages of the LendersLenders in respect of such Facility in effect on the date of such borrowing. Each payment on account of any commitment fee or letter of credit fee relating to any Facility shall be allocated by the relevant Administrative Agent among the Lenders in accordance with the respective Commitment Percentages of the Lenders in respect of such Facility. Any reduction of the Revolving Commitments of under any Facility shall be allocated among the Lenders shall be made pro rata according to the respective Revolving Commitment Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in --- ---- respect of such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Facility. Each payment (including each other than any optional prepayment) by the a Borrower on account of principal of the Revolving Loans shall be made allocated by the relevant Administrative Agent pro rata according to the respective outstanding principal --- ---- amounts of the Revolving Loans thereof then held by the Lenders (except for prepayments pursuant due and owing to Section 2.9(c), which shall be allocated as provided in such Section)each Lender. Each payment by a Borrower on account of interest on the Revolving Loans shall be made allocated by the relevant Administrative Agent pro rata according to the respective outstanding principal amounts of interest --- ---- then due and owing to each Lender. Each optional prepayment on account of principal of or interest on the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment under any Facility shall be allocated to by the Lenders in such Class relevant Administrative Agent pro rata according to the respective Revolving Percentages --- ---- outstanding principal amounts of the relevant LendersLoans outstanding under such Facility.
(cii) All payments (including prepayments) to be made by the U.S. Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the General Administrative Agent, for the account of the U.S. Lenders, at the Funding U.S. Payment Office, in U.S. Dollars and in immediately available funds. The General Administrative Agent shall distribute such payments to each relevant Lender the U.S. Lenders entitled to receive the same promptly upon receipt in like funds as received.
(iii) All payments (including prepayments) to be made by the Canadian Borrower hereunder, net whether on account of any amounts owing by principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made prior to 1:00 P.M., Toronto time, on the due date thereof to the Canadian Administrative Agent, for the account of the Canadian Lenders, at the Canadian Payment Office, in the currency in which the relevant amount is outstanding and in immediately available funds. The Canadian Administrative Agent shall distribute such Lender pursuant payments to Section 9.7. the Canadian Lenders entitled to receive the same promptly upon receipt in like funds as received.
(iv) If any payment hereunder (other than payments on the Eurodollar LoansLoans and the Acceptances) becomes due and payable on a day other than a Business Day, the maturity of 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. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof of 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) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extensionAcceptances may only mature on a Business Day.
(db) Unless the applicable Administrative Agent shall have been notified in writing by any Lender prior to a borrowing Borrowing Date that such Lender will not make the amount that would constitute its share of such borrowing available to the such Administrative Agent, the such Administrative Agent may assume that such Lender is making such amount available to the such Administrative Agent, and the such Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the such Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the such Administrative Agent, on demand, such amount with interest thereon, thereon at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Loans in U.S. Dollars), and (ii) the Canadian Administrative Agent's reasonable estimate of its average daily cost of funds (in the case of a rate determined by the Administrative Agent borrowing of Loans or Acceptances in accordance with banking industry rules on interbank compensationCanadian Dollars), in each case for the period until such Lender makes such amount immediately available to the such Administrative Agent. A certificate of the such Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the such Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent applicable Borrower shall also be entitled to recover repay such amount Lender's share of such borrowing (together with interest thereon from the date such amount was made available to such Borrower (i) at the rate per annum applicable to ABR Loans, on demand, from U.S. Base Rate Loans under the Borrower.
relevant Facility (e) Unless in the Administrative Agent shall have been notified in writing by the Borrower prior to the date case of any payment due to be amounts made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not U.S. Borrower and amounts made available in U.S. Dollars to the Administrative Agent by the Borrower within three Canadian Borrower) and (3ii) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal applicable to Canadian Prime Rate Loans under the relevant Facility (in the case of amounts made available in Canadian Dollars to the daily average Federal Funds Effective RateCanadian Borrower) to such Administrative Agent not later than three Business Days after receipt of written notice from such Administrative Agent specifying such Lender's share of such borrowing that was not made available to such Administrative Agent. Nothing herein contained in this Section 7.9(b) shall be deemed prejudice any claims otherwise available to limit the rights any Borrower against any Lender as a result of the such Lender's failure to make its share of any borrowing available to an Administrative Agent or any Lender against for the account of a Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according payable pursuant to the respective Revolving Percentages of the Lenders. Any Section 3.5(a) and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages, or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Term Lenders. The amount of each principal prepayment of the Term Loans shall be allocated as provided in such Section)applied to reduce the then remaining installments of the Term Loans, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower or any Subsidiary Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time (or, in the case of payments in respect of Foreign Currency Fronting Loans (other than payments in respect of participation fees pursuant to Section 3.17(b)), London time), on the due date thereof to the Administrative Agent, for the account of the Lendersrelevant Lenders (and, in the case of principal or interest payments in respect of Foreign Currency Fronting Loans, to the Foreign Currency Fronting Lender), at the Funding Office, in Dollars or the applicable Foreign Currency, as the case may be, and in immediately available funds. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing DateDate (and assuming the Administrative Agent has made such amount available to the Borrower), the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower or the applicable Subsidiary Borrower prior to the date of any payment due to be made by the Borrower or such Subsidiary Borrower hereunder that the Borrower or such Subsidiary Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or such Subsidiary Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower or the applicable Subsidiary Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective RateRate (or, in the case of amounts denominated in a Foreign Currency, its cost of funds with respect to such amount for such period). Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower or the applicable Subsidiary Borrower.
Appears in 1 contract
Samples: Credit Agreement (Wta Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A-1 Term Percentages, Tranche A-2 Term Percentages, Tranche A-3 Term Percentages, Tranche B Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders Term Lenders; provided that the Borrower may use proceeds of the Tranche A-2 Term Loans in an amount not to exceed $700,000,000 to repay the Tranche B Term Loans without making any corresponding repayment to any other Term Loans (except for prepayments which prepayment of the Tranche B Term Loan may be applied by the Borrower in the manner provided in the last sentence of this Section 2.17(b)). The amount of each principal prepayment of the Term Loans made pursuant to Section 2.9(c), which 2.11 shall be allocated applied to reduce the Tranche A-1 Term Loans, Tranche A-2 Term Loans, Tranche A-3 Term Loans, Tranche B Term Loans and any Incremental Term Loans that provide for pro rata allocation (pro rata between such Facilities) in direct order to the respective next twelve (12) scheduled principal installments, and pro rata among the remaining respective installments thereafter; provided that prepayments in an aggregate amount not to exceed $125,000,000 made pursuant to Section 2.11(b) as provided in such Section)a result of a Disposition pursuant to Section 7.5(g) shall be applied to the Tranche A Term Loans or the Tranche B Term Loans and to the order of the remaining principal installments thereof as elected by the Borrower. Amounts prepaid on account of the Term Loans may not be reborrowed. The amount of each principal prepayment of the Term Loans made pursuant to Section 2.10(a) shall be applied to reduce the remaining principal installments of the Term Loans as directed by the Borrower with respect to Facility and order.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according applied to the Loans included in the repaid Borrowing such that each Revolving Lender holding Loans included in such repaid Borrowing receives its ratable share of such repayment (based upon the respective outstanding principal amounts 2015 Revolving Exposure and 2016 Revolving Exposure, as applicable, of the Revolving Lenders holding Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders included in such Class pro rata according to repaid Borrowing at the respective Revolving Percentages time of the relevant Lenderssuch repayment).
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.17(e), 2.17(f), 3.4(a) or 9.7 (unless subject to a good faith dispute), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received by the Administrative Agent, the Swingline Lender or the Issuing Lender for the account of such Lender under this Agreement to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made made, with regard to the applicable Facility, pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages or Revolving Percentages of Credit Percentages, as the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. The amount of each principal payment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans, pro rata based upon the then remaining number of installments thereof, after giving effect to all prior reductions thereto (i.e., each then remaining installment of the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may be, shall be reduced by an amount equal to the aggregate amount to be applied to the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may be, divided by the number of the then remaining installments for such Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans); provided, that if the amount to be so applied to any installment would exceed the then remaining amount of such installment, then an amount equal to such excess shall be applied to the next 39 34 succeeding installment after giving effect to all prior reductions thereto (including the amount of prepayments theretofore allocated pursuant to the preceding portion of this sentence). Notwithstanding the foregoing, the first $40,000,000 of optional prepayments of the Term Loans shall be applied to such installments of the Term Loans as the Borrower shall elect (other than scheduled installments of the Tranche B Term Loans prior to September 30, 2003 and scheduled installments of the Tranche C Term Loans prior to March 31, 2005).
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Credit Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding OfficeAdministrative Agent's office specified in Section 10.2, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month(except, in which event such payment shall be made on the immediately preceding Business Daycase of Eurodollar Loans, as otherwise provided in clause (i) of the definition of "Interest Period"). In the case of any extension of any payment of principal pursuant to the preceding two sentencessentence, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.17(e) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Campfire Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments shall be made pro rata according to the respective Term Percentages, L/C Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction .
(b) Except as otherwise provided herein, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Commitments of the Lenders Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders except Term Loans then held by the Term Lenders. The amount of each principal prepayment (iwhether optional or mandatory) of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis based upon the respective then remaining principal amounts thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, any prepayment of the Term Loans shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to then outstanding Term Loans on a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages basis regardless of Type. Amounts prepaid on account of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall Term Loans may not be allocated as provided in such Sectionreborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, 10:00 A.M. on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of . Any payment received by the Administrative Agent after 10:00 A.M. shall be deemed received on the next succeeding Business Day and any amounts owing by such Lender pursuant applicable interest or fee shall continue to Section 9.7accrue. If any payment hereunder (other than payments on the Eurodollar SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the proposed date of any borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making has made such amount available to the Administrative AgentAgent on such date in accordance with Section 2, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall and the Borrower severally agree to pay to the Administrative Agent forthwith, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to the Borrower but excluding the date of payment to the Administrative Agent, on demandat (i) in the case of a payment to be made by such Lender, such amount with interest thereon, at a rate equal to the greater of (iA) the Federal Funds Effective Rate and (iiB) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive and (ii) in the absence case of manifest error. If such Lender’s share of such borrowing is not a payment to be made available to by the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateBorrower, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, on demandthe 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, from then the Borroweramount 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.
(ef) Unless the Administrative Agent shall have been notified in writing by received notice from the Borrower prior to the date of on which any payment is due to be made by the Borrower Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment to the Administrative Agentpayment, the Administrative Agent may assume that the Borrower is making has made such payment, payment on such date in accordance herewith and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available distribute to the Lenders their respective pro rata shares or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of a corresponding amount. If such payment is not made the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, in accordance with banking industry rules on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rateinterbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Loan Party.
(g) If any Lender makes available to the BorrowerAdministrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1, Section 5.2 or Section 5.3 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(h) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) fund its respective Swingline Participation Amount of any Swingline Loan, and (v) make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.7.
(i) 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.
(j) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and
Appears in 1 contract
Samples: Credit Agreement (Accuray Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower Company from the Lenders hereunder shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages, Canadian Term Loan Commitment Percentages or Revolving Credit Percentages, as the case may be, of the relevant Lenders; provided, that, pursuant to the second sentence of Section 5.6, Acceptances may be created in non-pro rata amounts if required to permit rounding to whole multiples of C$100,000. Each borrowing of the U.S. Term Loans shall be made first under the Tranche B Term Loan Commitments and each the Tranche C Term Loan Commitments, pro rata in accordance with the aggregate amounts of the Tranche B Term Loan Commitments and Tranche C Term Loan Commitments of the respective Lenders (provided, that until all Tranche B Term Loan Commitments and Tranche C Term Loan Commitments other than the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments have been fully drawn, such pro rata calculations shall be made without regard to the Tranche B-1 Term Loan Commitments and Tranche C-1 Term Loan Commitments of the Lenders) and, second, after the Tranche B Term Loan Commitments and the Tranche C Term Loan Commitment have been utilized in full, under the Tranche A Term Loan Commitments pro rata in accordance with the amounts of the Tranche A Term Loan Commitments of the respective Lenders. Each payment by the Borrower Company on account of any commitment fee and letter of credit commission and any reduction of the Revolving Credit Commitments shall be made pro rata according to the respective Revolving Credit Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except Each payment (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class other than any prepayment pursuant to Section 2.6, in which case each reduction 6.2 or 6.3) shall be allocated applied to the Lenders Facilities ratably in such Class pro rata according to accordance with the respective Revolving Percentages of amounts due and owing under the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionFacilities.
(b) Each payment (including each prepayment) by the Company on account of principal of and interest on the U.S. Term Loans under any Facility shall be made pro rata according to the respective outstanding principal amounts of the U.S. Term Loans under such Facility then held by the U.S. Term Loan Lenders.
(c) Each payment (including each prepayment) by the Canadian Borrower on account of principal of and interest on the Canadian Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Canadian Term Loans then held by the Canadian Lenders. Each payment in respect of Acceptance Reimbursement Obligations shall be made pro rata according to the respective amounts of Acceptance Reimbursement Obligations then due and owing to the Canadian Lenders.
(d) Each payment (including each prepayment) by the Company on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Credit Lenders.
(ce) All payments (including prepayments) to be made by the Borrower Company hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than payments under Section 13 in respect of the Canadian Borrower Obligations and the Canadian Operating Facility Obligations), shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the General Administrative Agent, for the account of the Lenders, at the Funding OfficeGeneral Administrative Agent's office specified in Section 14.2, in Dollars and in immediately available funds. The General Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment by the Company hereunder (other than payments on the Eurodollar LIBOR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) All payments (including prepayments) to be made by the Canadian Borrower hereunder (or by the Company under Section 13 in respect of the Canadian Borrower Obligations and the Canadian Operating Facility Obligations), whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian Administrative Agent, for the account of the Lenders, at the Canadian Administrative Agent's office specified in Section 14.2, in Canadian Dollars and in immediately available funds. The Canadian Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment by the Canadian Borrower hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. In the case of any extension of any payment of principal pursuant to the preceding sentence, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the applicable Administrative Agent shall have been notified in writing by any Lender prior to a borrowing Borrowing Date that such Lender will not make available to 61 61 such Administrative Agent the amount that would constitute its share of the Loans or Acceptance Purchase Price to be disbursed to a Borrower on such borrowing available to the Administrative AgentBorrowing Date, the such Administrative Agent may assume that such Lender is making such amount available to the such Administrative Agent, and the such Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the such Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the such Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) in the case of amounts to be made available in U.S. Dollars, the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the General Administrative Agent and (ii) in the case of amounts to be made available in Canadian Dollars, the Canadian Administrative Agent's reasonable estimate of its average daily cost of funds. A certificate of the General Administrative Agent or the Canadian Administrative Agent, as the case may be, submitted to any Lender with respect to any amounts owing under this paragraph Section 6.9(g) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing amount is not made available to the such Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the such Administrative Agent shall also be entitled to recover such amount from the relevant Borrower on demand with interest thereon at the rate per annum applicable to ABR Loans, on demand, from Base Rate Loans under the Borrower.
relevant Facility (e) Unless in the Administrative Agent shall have been notified in writing by the Borrower prior to the date case of any payment due amounts to be made by available in U.S. Dollars), or Canadian Term Loans (in the Borrower hereunder that the Borrower will not make such payment case of amounts to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrowerin Canadian Dollars).
Appears in 1 contract
Samples: Credit Agreement (Laidlaw Environmental Services Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Loans by the Borrower from the Revolving Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the respective Revolving Percentages Commitments then held by the Revolving Lenders. Each payment by the Borrower on account of the relevant Lenders except (i) any facility fee or any letter of credit fee shall be paid ratably to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Revolving Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionentitled thereto.
(b) Each payment (including each prepayment) prepayment by the Borrower on account of principal of the Revolving any Loans of any Class shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans of such Class then held by the Lenders entitled to such payment (except for prepayments pursuant subject in the case of Term Loans to Section 2.9(c2.08(f), which ). All repayments of principal of any Loans at stated maturity or upon acceleration shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving matured or accelerated Loans then held by the relevant Lenders, except to the extent that this Agreement provides that different Classes . All payments of Revolving interest in respect of any Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of outstanding interest payable then owed to the relevant Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise but excluding any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.16 and Section 9.05) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent, the Issuing Bank and the Swing Line Lender hereunder (including amounts owed under Section 2.09(b) or 9.04(c)), (2) second, to the funding of any Loan or LC Disbursement required by this Agreement, as determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Loans, such payment shall be applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to being applied to the prepayment of any Loan of any Defaulting Lender.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time, on the due date thereof when due. All payments received by the Administrative Agent after 2:00 p.m., New York City time, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest and fees thereon. All such payments shall be made to the Administrative Agent’s Office except that payments pursuant to Sections 2.12, for 2.13, 2.14, 2.22 and 9.04 shall be made directly to the account of the Lenders, at the Funding Office, in Dollars and in immediately available fundsPersons entitled thereto. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing If at any time insufficient funds are received by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by to pay fully all amounts of the required time on the Borrowing Date thereforObligations then due hereunder, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph funds shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available applied (subject to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent to hold and apply amounts to be paid to a Defaulting Lender in accordance with Section 2.15(b)) in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest and fees with respect to the Loans and the Commitments, but including amounts payable under Section 9.04) payable to the Administrative Agent in its capacity as such (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed in any Insolvency or Liquidation Proceeding) until paid in full; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit fees) payable to the Lenders and the Issuing Banks (including fees, charges and disbursements of counsel to the respective Lenders and Issuing Banks) arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees and interest on the Loans and other Obligations arising under the Loan Documents, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and Obligations then owing under Specified Swap Agreements and Cash Management Agreements, ratably among the Lenders, the Issuing Banks, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to the Administrative Agent for the account of the Issuing Banks, to cash collateralize that portion of the LC Exposure to the extent not otherwise cash collateralized by the Borrower pursuant to Sections 2.17 and 2.18; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
(e) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate principal amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower or any other Loan Party pursuant to and in accordance with the express terms of this Agreement and the other Loan Documents or any payment obtained by a Lender against as consideration for the Borrowerassignment of or sale of a participation in any of its Loans to any assignee or participant.
Appears in 1 contract
Samples: Credit Agreement (Donnelley Financial Solutions, Inc.)
Pro Rata Treatment and Payments. 509265-1918-Active.20125323.120125323.6
(a) Each borrowing by the Borrower of Five-Year Loans, Term Loans, New Term Loans and New Term III Loans from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Five-Year Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages Five-Year Commitment Percentages, Term Percentage, New Term Percentage or New Term III Percentage, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction payment (including each prepayment) by the Borrower on account of principal of and interest on the Five-Year Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving outstanding principal amounts of the Five-Year Loans then held by the Five-Year Lenders. Each borrowing of Five-Year Loans from the Lenders hereunder, each payment by the Borrower on account of any fee hereunder and, subject to the last sentence of Section 2.4, any reduction of the Five-Year Loans of the Lenders shall be made pro rata according to the Five-Year Commitment Percentages of the relevant Lenders Lenders. Each payment by the Borrower on account of principal of and (ii) reductions pursuant to Section 2.9(c), which interest on any Borrowing of Competitive Loans shall be allocated as provided made pro rata among the Lenders participating in such Section.
(b) Borrowing according to the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving (i) Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Term Lenders and, (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving ii) New Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving New Term Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving New Term Lenders and (iii) New Term III Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Term III Loans then held by the New Term III Lenders. The amount of each principal prepayment of the (x) Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis and, (y) New Term Loans shall be applied to reduce the then remaining installments of the New Term Loans on a pro rata basis and (z) New Term III Loans shall be applied to reduce the then remaining installments of the New Term III Loans on a pro rata basis. Amounts prepaid on account of Term Loans and, New Term Loans and New Term III Loans may not be reborrowed.
(cb) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAdministrative Agent’s office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by the Borrower to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another 509265-1918-Active.20125323.120125323.6 calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Borrower against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata PRO RATA according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata PRO RATA according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders (except as otherwise provided in Section 2.16(d). The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, PRO RATA based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made PRO RATA according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders.
(except for prepayments d) Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to 50% of the portion of any optional prepayment or mandatory prepayment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any optional prepayment described in Section 2.9 or mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than ten Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.9(c2.10, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be allocated as provided in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "PREPAYMENT DATE") that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such SectionLender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender, (ii) the Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans, and (C) the Borrower shall be entitled to retain the remaining 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders. Each payment Term Loan Lender other than an Accepting Lender shall receive its portion of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lendersany optional prepayment or mandatory prepayment as set forth in Sections 2.9, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders2.10 and 2.16.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s Xxxxxx's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility, on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Axiohm Transaction Solutions Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Revolving 364 Day Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any hereunder and any reduction of the Revolving 364 Day Commitments of the Revolving 364 Day Lenders shall be made pro rata according to the respective Revolving Commitment Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, Revolving 364 Day Lenders. Except during any period in which case an Event of Default has occurred and is continuing, each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term Loans and/or the Revolving Loans 364 Day Loans, and any application by the Administrative Agent of the proceeds of any Collateral, shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) . All payments (including prepayments) to be made by the Borrower hereunderhereunder in respect of any Loan, whether on account of principal, interest, fees Reimbursement Obligations (whether in respect of Domestic L/Cs or Foreign L/Cs), fees, expenses or otherwise, shall be made without setoff set off or counterclaim and shall be made prior to 2:00 P.M.11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the LendersLenders with respect to such Loans, at the Funding OfficeAdministrative Agent's office specified in subsection 10.2, in Dollars and in immediately available funds; provided, that, with respect to any Reimbursement Obligations of the Borrower
(1) to the ratable payment of all amounts due and owing by the Borrower pursuant to subsection 10.5 of this Agreement, subsection 10.5 of the Facility A Credit Agreement or subsection 10.5 or the Facility C Credit Agreement to the Agents, the Facility A Agents and/or the Facility C Agents and, after payment in full thereof, to any other Lender, Facility A Lender or Facility C Lender; (2) to the ratable payment of all interest, fees and commissions due and owing under this Agreement, the Facility A Credit Agreement or the Facility C Credit Agreement or to the Agents, the Facility C Agents, the Facility A Agents, the Swing Line Lender, any Lender, any Facility A Lender or any Facility C Lender; (3) to the ratable payment (or cash collateralization) of the aggregate outstanding principal amount of Loans, Facility A Loans and Facility C Loans and the aggregate L/C Obligations and Facility A L/C Obligations; and (4) to the ratable payment of all other obligations of the Borrower to the Agents, the Facility A Agents, the Facility C Agents, the Swing Line Lender, any Lender, any Facility A Lender or any Facility C Lender under any Credit Document, Facility A Credit Document or Facility C Credit Document. For purposes of applying payments and proceeds distributed under clause 3 above, each Lender will first apply such amounts to all outstanding Loans of such Lender before such amounts will be held as cash collateral for L/C Obligations in which such Lender is a L/C Participant. The Administrative Agent, the Facility A Administrative Agent and the Facility C Administrative Agent shall ratably distribute such payments to each relevant Lender the applicable Lenders, the Facility A Lenders and the Facility C Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended and, with respect to the next succeeding Business Day unless the result payments of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
(db) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share Commitment Percentage of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative AgentAgent on such Borrowing Date, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s share 's Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans hereunder, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date . The failure of any payment due Lender to make any Loan to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but it shall not be required to, in reliance upon relieve any other Lender of its obligation hereunder to make its Loan on such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the BorrowerBorrowing Date.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower of Five-Year Loans, Term Loans, New Term Loans and New Term III Loans from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Five-Year Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages Five-Year Commitment Percentages, Term Percentage, New Term Percentage or New Term III Percentage, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction payment (including each prepayment) by the Borrower on account of principal of and interest on the Five-Year Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving outstanding principal amounts of the Five-Year Loans then held by the Five-Year Lenders. Each borrowing of Five-Year Loans from the Lenders hereunder, each payment by the Borrower on account of any fee hereunder and, subject to the last sentence of Section 2.4, any reduction of the Five-Year Loans of the Lenders shall be made pro rata according to the Five-Year Commitment Percentages of the relevant Lenders Lenders. Each payment by the Borrower on account of principal of and (ii) reductions pursuant to Section 2.9(c), which interest on any Borrowing of Competitive Loans shall be allocated as provided made pro rata among the Lenders participating in such Section.
(b) Borrowing according to the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving (i) Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders Term Lenders, (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving ii) New Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving New Term Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving New Term Lenders and (iii) New Term III Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant New Term III Loans then held by the New Term III Lenders. The amount of each principal prepayment of the (x) Term Loans shall be applied to reduce the then remaining installments of the Term Loans on a pro rata basis, (y) New Term Loans shall be applied to reduce the then remaining installments of the New Term Loans on a pro rata basis and (z) New Term III Loans shall be applied to reduce the then remaining installments of the New Term III Loans on a pro rata basis. Amounts prepaid on account of Term Loans, New Term Loans and New Term III Loans may not be reborrowed.
(cb) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAdministrative Agent’s office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by the Borrower to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Borrower against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Percentages of Credit Percentages, as the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages case may be, of the relevant Lenders except Lenders; provided however that if (i) the Borrower makes non pro-rata payments in accordance with Sections 5.18 and 5.19 to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of only those Lenders with respect to a particular Class pursuant to Section 2.6, selling Term Loans in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and an Auction or (ii) reductions Facilities in addition to the Tranche A Term Facility, the Tranche B Term Facility or the Original Revolving Credit Facility exist pursuant to the terms of this Agreement, this Section 2.9(c), which 5.11(a) shall be allocated not prohibit the Borrower from making such additional payments or such reductions in Commitments as otherwise expressly provided in such Sectionfor herein.
(b) Except as otherwise provided herein, each payment (including each prepayment) of the Tranche A Term Loans shall be allocated among the Tranche A Term Loan Lenders holding such Tranche A Term Loans pro rata based on the principal amount of Tranche A Term Loans held by such Tranche A Term Loan Lenders. Amounts prepaid on account of the Tranche A Term Loans may not be reborrowed. Except as otherwise provided herein, each payment (including each prepayment) of the Tranche B Term Loans shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata based on the principal amount of Tranche B Term Loans held by such Tranche B Term Loan Lenders. Amounts prepaid on account of the Tranche B Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders, except with respect to any payments made pursuant to Section 5.20. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the extent Issuing Lender that this Agreement provides that different Classes issued such Letters of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant LendersCredit.
(cd) Notwithstanding anything to the contrary in Sections 5.5 or 5.11, each Term Loan Lender may, at its option, decline all or any portion of any mandatory payment (such declined amounts, the “Declined Proceeds”) applicable to the Term Loan of such Lender by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Borrower no later than 5:00 p.m., New York City time, three Business Days prior to the Mandatory Prepayment Date regarding such prepayment. Each Rejection Notice from a given Term Loan Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be declined by such Term Loan Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure shall be deemed an acceptance of the total amount of such mandatory repayment of Term Loans due to it. Any Declined Proceeds properly rejected pursuant to the above terms shall be retained by the Borrower (such retained Declined Proceeds referred to herein as “Retained Declined Proceeds”).
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. Any payment made by the Borrower after 2:00 p.m., New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled thereto promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent Rate, in accordance with banking industry rules on interbank compensation, each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount (but only to the extent theretofore made available by it to the Borrower) with interest thereon at the rate per annum applicable to ABR Loans, the applicable borrowing under the relevant Facility on demand, from the Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Term Percentages and Incremental Term Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans and Other Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans and Other Term Loans then held by the Term Lenders (except for and applicable Incremental Term Lenders. Optional prepayment of the Term Loans and Other Term Loans shall be applied to the respective installments thereof pro rata first to scheduled installments thereof occurring with the next 12 months in direct order of maturity and second to reduce the then remaining installments of the Term Loans pro rata based upon the respective then remaining principal amounts thereof. Mandatory prepayments of the Term Loans shall be applied to the respective installments thereof ratably in accordance with the then outstanding amounts thereof. Other Term Loans shall share in mandatory prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except 2.5 only to the extent that this Agreement provides that different Classes provided in the applicable Incremental Term Loan Assumption Agreement. The amount of Revolving each principal prepayment of the Other Term Loans shall have different Applicable Margins, in which case each payment pursuant to Section 2.5 shall be allocated applied to reduce the Lenders then remaining installments in such Class pro rata according to the respective Revolving Percentages order specified in the applicable Incremental Term Loan Assumption Agreement. Amounts prepaid on account of the relevant LendersTerm Loans and Incremental Term Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.available
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the ------------------------------- Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages --- ---- Percentages, as the case may be, of the relevant Lenders except Lenders.
(ia) to Each payment (including each prepayment) by the extent that this Agreement provides for reductions to be disproportionately allocated to a group Borrower on account of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction principal of and interest on the Term Loans shall be allocated to the Lenders in such Class made pro rata --- ---- according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders and (ii) reductions Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans made pursuant to Section 2.9(c), which 2.10 shall be allocated as provided applied to reduce the then remaining installments of the Term Loans in such Sectiondirect order of maturity thereof. The amount of each principal prepayment of the Term Loans made pursuant to Section 2.11 shall be applied to reduce the then remaining installments of the Term Loans pro rata based upon the then remaining principal amount thereof. --- ---- Amounts prepaid on account of the Term Loans may not be reborrowed.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro --- rata according to the respective outstanding principal amounts of the Revolving ---- Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent may effect any such payment by debiting any account maintained by the Borrower with the Administrative Agent. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.17(e) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares --- ---- of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of the Facility Fee or Letter of Credit fee, and any commitment fee reduction of the Commitments of the Lenders under any Facility, shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders. Any reduction Each payment of interest in respect of the Revolving Commitments Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) amounts then due and owing to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(ba) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section)Revolving Credit Lenders. Each payment in respect of interest Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit. Each payment (including each prepayment) by the Borrower on the Revolving account of principal of any Series of Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans in such Series then held by the Term Loan Lenders.
(b) The application of any payment of Loans under any Facility (including mandatory prepayments but excluding optional prepayments, which shall be applied as directed by the Borrower) shall be made, first, to Base Rate Loans under such Facility and, second, to Term SOFR Loans under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the extent that this Agreement provides that different Classes date of Revolving Loans shall have different Applicable Margins, in which case each such payment shall be allocated to on the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lendersamount paid.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.pm, local time in New York City timeCity, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The Administrative Agent Any payment made by the Borrower after 2:00 pm, local time in New York City, on any Business Day shall distribute such payments be deemed to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7have been on the next following Business Day. If any payment hereunder (other than payments on the Eurodollar Term SOFR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing of Loans that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender Xxxxxx is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such LenderXxxxxx’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Base Rate Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(f) Upon receipt by the Administrative Agent of payments on behalf of Xxxxxxx, the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agent. If and to the extent the Administrative Agent shall not make such payments to a Lender when due as set forth in the preceding sentence, then such unpaid amounts shall accrue interest, payable by the Administrative Agent, at the Federal Funds Rate from the due date until (but not including) the date on which the Administrative Agent makes such payments to such Lender. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8.1(f), or otherwise) (the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Lender Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower Company from the Lenders hereunder and each shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages, Canadian Term Loan Commitment Percentages or Revolving Credit Percentages, as the case may be, of the relevant Lenders. Each payment by the Borrower Company on account of any commitment fee and letter of credit commission and any reduction of the Revolving Credit Commitments shall be made pro rata according to the respective Revolving Credit Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Section.
(b) Each payment (including each prepayment) by the Company on account of principal of and interest on the U.S. Term Loans under any Facility shall be made pro rata according to the respective outstanding principal amounts of the U.S. Term Loans under such Facility then held by the U.S. Term Loan Lenders.
(c) Each payment (including each prepayment) by the Canadian Borrower on account of principal of and interest on the Canadian Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Canadian Term Loans then held by the Canadian Lenders.
(d) Each payment (including each prepayment) by the Company on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Credit Lenders.
(ce) All payments (including prepayments) to be made by the Borrower Company hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than payments under Section 13 in respect of the Canadian Borrower Obligations and the Canadian Operating Facility Obligations), shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the General Administrative Agent, for the account of the Lenders, at the Funding OfficeGeneral Administrative Agent's office specified in Section 14.2, in Dollars and in immediately available funds. The General Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment by the Company hereunder (other than payments on the Eurodollar LIBOR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) All payments (including prepayments) to be made by the Canadian Borrower hereunder (or by the Company under Section 13 in respect of the Canadian Borrower Obligations and the Canadian Operating Facility Obligations), whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian Administrative Agent, for the account of the Lenders, at the Canadian Administrative Agent's office specified in Section 14.2, in Canadian Dollars and in immediately available funds. The Canadian Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment by the Canadian Borrower hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. In the case of any extension of any payment of principal pursuant to the preceding sentence, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the applicable Administrative Agent shall have been notified in writing by any Lender prior to a borrowing Borrowing Date that such Lender will not make available to such Administrative Agent the amount that would constitute its share of the Loans or Acceptance Purchase Price to be disbursed to a Borrower on such borrowing available to the Administrative AgentBorrowing Date, the such Administrative Agent may assume that such Lender is making such amount available to the such Administrative Agent, and the such Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the such Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the such Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) in the case of amounts to be made available in U.S. Dollars, the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the General Administrative Agent and (ii) in the case of amounts to be made available in Canadian Dollars, the Canadian Administrative Agent's reasonable estimate of its average daily cost of funds. A certificate of the General Administrative Agent or the Canadian Administrative Agent, as the case may be, submitted to any Lender with respect to any amounts owing under this paragraph Section 6.9(g) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing amount is not made available to the such Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the such Administrative Agent shall also be entitled to recover such amount from the relevant Borrower on demand with interest thereon at the rate per annum applicable to ABR Loans, on demand, from Base Rate Loans under the Borrower.
relevant Facility (e) Unless in the Administrative Agent shall have been notified in writing by the Borrower prior to the date case of any payment due amounts to be made by available in U.S. Dollars), or Canadian Term Loans (in the Borrower hereunder that the Borrower will not make such payment case of amounts to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrowerin Canadian Dollars).
Appears in 1 contract
Samples: Credit Agreement (Laidlaw Environmental Services Inc)
Pro Rata Treatment and Payments. (ai) Each borrowing by the Borrower or the Foreign Subsidiary Borrowers from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders; provided, that each borrowing by the Foreign Subsidiary Borrowers of Multicurrency Revolving Loans from the Multicurrency Lenders hereunder and any reduction of the Multicurrency Revolving Subcommitments of the Multicurrency Lenders shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any ; provided further that the Multicurrency Sublimit shall be reduced pro rata with any reduction of in the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionCommitments.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower or any Foreign Subsidiary Borrower on account of principal of and interest on the Dollar Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Dollar Revolving Loans then held by the Dollar Revolving Lenders and each payment (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment including each prepayment) by any Foreign Subsidiary Borrower on account of principal of and interest on the Multicurrency Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Multicurrency Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Multicurrency Lenders.
(cd) All payments (including prepayments) to be made by the Borrower or any Foreign Subsidiary Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds (or, in the case of principal or interest relating to Multicurrency Revolving Loans, prior to 3:00 P.M., London time, on the due date thereof to the Multicurrency Administrative Agent, for the account of the Multicurrency Lenders, at its London Funding Office, in the relevant Foreign Currency and in immediately available funds). The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent or the Multicurrency Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, the Administrative Agent or the Multicurrency Administrative Agent, as applicable, may assume that such Lender is making such amount available to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, and the Administrative Agent or the Multicurrency Administrative Agent, as applicable, may, in reliance upon such assumption, make available to the Borrower or the relevant Foreign Subsidiary Borrower, as applicable, a corresponding amount. If such amount is not made available to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, on demand, (i) in the case of amounts denominated in Dollars, such amount with interest thereon, at a rate equal to the greater of (iX) the Federal Funds Effective Rate and (iiY) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent or (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate determined by the Multicurrency Administrative Agent to be the cost to it of funding such amount until such Lender makes such amount immediately available to the Multicurrency Administrative Agent. A certificate of the Administrative Agent or the Multicurrency Administrative Agent, as applicable, submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent or the Multicurrency Administrative Agent, as applicable, shall also be entitled to recover (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower or (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate determined by the Multicurrency Administrative Agent to be the cost to it of funding such amount, on demand, from the relevant Foreign Subsidiary Borrower. Nothing herein shall be deemed to limit the rights of any Borrower or any Foreign Subsidiary Borrower against any Lender that fails to make Loans hereunder.
(ef) Unless the Administrative Agent or the Multicurrency Administrative Agent, as applicable, shall have been notified in writing by the Borrower or the relevant Foreign Subsidiary Borrower prior to the date of any payment due to be made by the Borrower or the relevant Foreign Subsidiary Borrower hereunder that the Borrower or the relevant Foreign Subsidiary Borrower will not make such payment to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, the Administrative Agent or the Multicurrency Administrative Agent, as applicable, may assume that the Borrower or the relevant Foreign Subsidiary Borrower is making such payment, and the Administrative Agent or the Multicurrency Administrative Agent, as applicable, may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, by the Borrower or the relevant Foreign Subsidiary Borrower within three (3) Business Days after such due date, the Administrative Agent or the Multicurrency Administrative Agent, as applicable, shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective RateRate and (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate per annum determined by the Multicurrency Administrative Agent to be the cost to it of funding such amount. Nothing herein shall be deemed to limit the rights of the Administrative Agent, the Multicurrency Administrative Agent or any Lender against the Borrower or any Foreign Subsidiary Borrower.
Appears in 1 contract
Samples: Credit Agreement (Kadant Inc)
Pro Rata Treatment and Payments. (a) Except as provided in subsection 2.5: (i) Each borrowing by the Borrower from the Tranche A Lenders hereunder and under the Tranche A Revolving Facility shall be made pro rata according to their respective Tranche A Revolving Credit Percentages, (ii) each payment by the Borrower on account of any commitment fee, facility fee and letter of credit commission applicable to the Tranche A Revolving Facility and any reduction of the Tranche A Revolving Credit Commitments shall be made pro rata according to their respective Tranche A Revolving Credit Percentages, (iii) each borrowing by the respective Borrower from the Tranche B Lenders under the Tranche B Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Lenders Facility shall be made pro rata according to their respective Tranche B Revolving Credit Percentages and (iv) each payment by the respective Borrower on account of any commitment fee, facility fee and letter of credit commission applicable to the Tranche B Revolving Percentages Facility and any reduction of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction Tranche B Revolving Credit Commitments shall be allocated to the Lenders in such Class made pro rata according to the their respective Tranche B Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionCredit Percentages.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Tranche A Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Tranche A Revolving Credit Loans then held by the Tranche A Lenders and (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each ii) each payment (including each prepayment) on account of principal of and interest on the Tranche B Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Tranche B Revolving Credit Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Tranche B Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, otherwise shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the General Administrative Agent, for the account of the Lenders, at the Funding OfficeGeneral Administrative Agent's office specified in Section 11.2 (unless the provisions of subsections 4.3(g) and (h) are in effect, in which case such provisions shall govern) in Dollars and in immediately available funds. The General Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as receivedreceived (unless the provisions of subsections 2.5, net of any amounts owing by 4.3(g) and (h) and 4.9(e) and (f) are in effect, in which case such Lender pursuant to Section 9.7provisions shall govern). If any payment by the Borrower hereunder (other than payments on the Eurodollar LIBOR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the General Administrative Agent shall have been notified in writing by any Lender prior to a borrowing Borrowing Date that such Lender will not make available to the General Administrative Agent the amount that would constitute its share of such borrowing available the Loans to be disbursed to the Administrative AgentBorrower on the such Borrowing Date, the General Administrative Agent may assume that such Lender is making such amount available to the General Administrative Agent, and the General Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the General Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the General Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the General Administrative Agent. A certificate of the General Administrative Agent Agent, submitted to any Lender with respect to any amounts owing under this paragraph Section 4.9(d) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing amount is not made available to the General Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the General Administrative Agent shall also be entitled to recover such amount from the Borrower on demand with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility. At any time that the provisions in subsections 2.5(e) and 4.9(e) and (f) are in effect, on demand, from references in this paragraph to the BorrowerGeneral Administrative Agent shall be deemed references to the Collateral Agent.
(e) Unless With respect to each Interest Settlement Period, on the last Business Day of such Interest Settlement Period, the Collateral Agent shall notify each Lender of the average daily unpaid principal amount of Loans that are the subject of such Interest Settlement Period. In the event that such amount is greater than the average daily unpaid principal amount of such Loans outstanding during the immediately preceding Interest Settlement Period for such Loans (or if such Interest Settlement Period is the initial Interest Settlement Period for such Loans, greater than the principal amount of such Loans on the Business Day prior to the Borrower Notification Date), each Lender shall promptly pay to the Collateral Agent its Tranche A Revolving Credit Percentage or Tranche B Revolving Credit Percentage, as applicable, of such difference, together with interest on the amount of such difference at the Federal Funds Effective Rate for such Interest Settlement Period. In the event that such amount is less than the average daily unpaid principal amount of such Loans during the immediately preceding Interest Settlement Period (or if such Interest Settlement Period is the initial Interest Settlement Period for such Loans, less than the principal amount of Loans on the Business Day prior to the Borrower Notification Date), the Collateral Agent shall promptly pay to each Lender its Tranche A Revolving Credit Percentage or Tranche B Revolving Credit Percentage, as applicable, of such difference, together with interest on the amount of such difference at the Federal Funds Effective Rate for such Interest Settlement Period. The obligations of each Lender under this subsection 4.9(e) shall be absolute and unconditional without defense, setoff or counterclaim. Each Lender shall only be entitled to receive interest on its Tranche A Revolving Credit Percentage or Tranche B Revolving Credit Percentage, as applicable, of the Loans that have been funded by such Lender.
(f) With respect to each Principal Settlement Period, on the last day of such Principal Settlement Period, the Collateral Agent shall notify each Lender of the principal amount of Loans outstanding at the end of such Principal Settlement Period. In the event that such amount is greater than the principal amount of Loans outstanding at the end of the immediately preceding Principal Settlement Period (or if such Principal Settlement Period is the initial Principal Settlement Period, greater than the principal amount of Loans on the Business Day prior to the Borrower Notification Date), each Lender shall promptly pay to the Collateral Agent its Tranche A Revolving Credit Percentage or Tranche B Revolving Credit Percentage, as applicable, of such difference. In the event that such amount is less than the principal amount of Loans outstanding at the end of the immediately preceding Principal Settlement Period (or if such Principal Settlement Period is the initial Principal Settlement Period, less than the principal amount of Loans on the Business Day prior to the Borrower Notification Date), the Collateral Agent shall promptly pay to each Lender its Tranche A Revolving Credit Percentage or Tranche B Revolving Credit Percentage, as applicable, of such difference. In addition, if the General Administrative Agent shall request at any time when a Default or Event of Default has occurred and is continuing, or any other event shall have occurred as a result of which the General Administrative Agent shall have been notified in writing by determined that it is desirable for the Lenders to present their claims against the Borrower prior for repayment, each Lender shall promptly remit to the date of any payment due to be made by Collateral Agent or, as the Borrower hereunder that the Borrower will not make such payment to the Administrative Agentcase may be, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Collateral Agent shall be entitled promptly remit to recover, on demand, from each Lender sufficient funds to which any amount was made available pursuant to adjust the preceding sentence, interests of each Lender in the then outstanding Loans such amount with that each Lender's interest thereon at in the rate per annum Loans then outstanding is equal to the daily average Federal Funds Effective Rateits Tranche A Revolving Credit Percentage or Tranche B Revolving Credit Percentage, as applicable, thereof. Nothing herein The obligations of each Lender under this subsection 4.9 shall be deemed to limit the rights of the Administrative Agent absolute and unconditional without defense, setoff or any Lender against the Borrowercounterclaim.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders except Lenders. Each payment (iother than prepayments) to in respect of principal or interest in respect of the extent that this Agreement provides for reductions to be disproportionately allocated to a group Loans, each payment in respect of Lenders with fees payable hereunder, and each payment in respect to a particular Class pursuant to Section 2.6of Reimbursement Obligations, in which case each reduction shall be allocated among the Facilities in respect of which such amounts are owing pro rata according to the Lenders amounts then due and owing under the respective Facilities.
(b) Except as otherwise provided in such Class subsection 2.16(d), each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders Term Loans then held by the Term Loan Lenders, and (ii) reductions pursuant to Section 2.9(c), which the amount of each principal prepayment of the Term Loans shall be allocated applied to reduce the then remaining installments of the Tranche EA Term Loans and the Tranche EB Term Loans, as provided in such Sectionthe case may be, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Lenders Revolving Credit Lenders.
(except for prepayments d) Notwithstanding anything to the contrary in subsections 2.10(a), (b), (c) or (d) or subsection 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline all or any portion of any optional prepayment or mandatory prepayment applicable to the Tranche B Term Loans of such Lender (other than any mandatory prepayment made pursuant to Section 2.9(csubsection 2.10(e)); accordingly, with respect to the amount of any such optional prepayment or mandatory prepayment that is allocated to Tranche B Term Loans (such amounts, the "Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than 10 days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any such mandatory prepayment required to be made pursuant to subsection 2.10, in lieu of applying such amount to the prepayment of Tranche B Term Loans on the date specified in subsection 2.10 for such prepayment, give the General Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the General Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the General Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be allocated as provided in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 5 days after the date of the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such SectionLender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the General Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have not declined to accept prepayment as described above (such Lenders, the "Accepting Lenders"). Each payment of interest on the Revolving Loans , and such amount shall be made pro rata according applied to reduce the Tranche B Repayment Amounts with respect to each Accepting Lender and (ii) the Borrower shall pay to the respective outstanding principal amounts General Administrative Agent an amount equal to the portion of the Revolving Loans then held Tranche B Prepayment Amount not accepted by the Accepting Lenders, except and such amount shall be applied to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages prepayment of the relevant LendersTranche A Term Loans.
(ce) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City Chicago, Illinois time, on the due date thereof to the General Administrative Agent, for the account of the Lenders, at the Funding Payment Office, in Dollars and in immediately available funds. The General Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the General Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the General Administrative Agent, the General Administrative Agent may assume that such Lender is making such amount available to the General Administrative Agent, and the General Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the General Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the General Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the General Administrative Agent. A certificate of the General Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the General Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the General Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum equal to the interest rate applicable for such period to ABR Loanssuch borrowing, on demand, from the Borrower.
(eg) Unless the General Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the General Administrative Agent, the General Administrative Agent may assume that the Borrower is making such payment, and the General Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the General Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the General Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the General Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments shall be made pro rata according to the respective Term Percentages, L/C Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders. Any reduction .
(b) Except as otherwise provided herein, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Commitments of the Lenders Term Loans shall be made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant Lenders except Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans (iwhether optional or mandatory) shall be applied to reduce the then remaining installments of the Term Loans pro rata based upon the respective then remaining principal amounts thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, any prepayment of Loans shall be applied to the extent that this Agreement provides for reductions to be disproportionately allocated to then outstanding Term Loans on a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages basis regardless of Type. Amounts prepaid on account of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall Term Loans may not be allocated as provided in such Sectionreborrowed.
(bc) Each payment (including each prepayment) by the Borrower on account of principal of the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff or counterclaim and shall be made prior to 2:00 P.M.10:00 A.M., New York City Pacific time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of . Any payment received by the Administrative Agent after 10:00 A.M. shall be deemed received on the next succeeding Business Day and any amounts owing by such Lender pursuant applicable interest or fee shall continue to Section 9.7accrue. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the date of any borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative AgentAgent on such date in accordance with Section 2, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall and the Borrower severally agree to pay to the Administrative Agent, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, a rate equal to the greater of (iA) the Federal Funds Effective Rate and (iiB) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive and (ii) in the absence case of manifest error. If such Lender’s share of such borrowing is not a payment to be made available to by the Administrative Agent by such Lender within three (3) Business Days after such Borrowing DateBorrower, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, on demandthe 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, from then the Borroweramount 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.
(ef) Unless the Administrative Agent shall have been notified in writing by received notice from the Borrower prior to the date of on which any payment is due to be made by the Borrower Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment to the Administrative Agentpayment, the Administrative Agent may assume that the Borrower is making such payment, payment on such date in accordance herewith and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available distribute to the Lenders their respective pro rata shares or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of a corresponding amount. If such payment is not made the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, in accordance with banking industry rules on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rateinterbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Loan Party.
(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 Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1 or Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(h) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) to fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) to fund its respective Swingline Participation Amount of any Swingline Loan, and (v) to make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.7.
(i) 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.
(j) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(k) If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the principal of or interest on any Loan made by it, its participation in the L/C Exposure or other obligations hereunder, as applicable (other than pursuant to a provision hereof providing for non-pro rata treatment), in excess of its Term Percentage, Revolving Percentage or L/C Percentage, as applicable, of such payment on account of the Loans or participations obtained by all of the Lenders, such Lender shall forthwith advise the Administrative Agent of the receipt of such payment, and within five (5) Business Days of such receipt purchase (for cash at face value) from the other Term Lenders, Revolving Lenders or L/C Lenders, as applicable (through the Administrative Agent), without recourse, such participations in the Term Loans or Revolving Loans made by them and/or participations in the L/C Exposure held by them, as applicable, or make such other adjustments as shall be equitable, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of the other Lenders in accordance with their respective Term Percentages, Revolving Percentages or L/C Percentages, as applicable; provided, however, that if all or any portion of such excess payment is thereafter recovered by or on behalf of the Borrower from such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.18(k) may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. No documentation other than notices and the like referred to in this Section 2.18(k) shall be required to implement the terms of this Section 2.18(k). The Administrative Agent shall keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased pursuant to this Section 2.18(k) and shall in each case notify the Term Lenders, the Revolving Lenders or the L/C Lenders, as applicable, following any such purchase. The provisions of this Section 2.18(k) shall not be construed to apply to (i) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (ii) the application of Cash Collateral provided for in Section 3.10, or (iii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in any L/C Exposure to any assignee or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrower consents on behalf of itself and each other Loan Party to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
(l) Notwithstanding anything to the contrary in this Agreement, the Administrative Agent may, in its discretion at any time or from time to time, without the Borrower’s request and even if the conditions set forth in Section 5.2 would not be satisfied, make a Revolving Loan in an amount equal to the portion of the Obligations constituting overdue interest and fees and Swingline Loans from time to time due and payable to itself, any Revolving Lender, the Swingline Lender or the Issuing Lender, and apply the proceeds of any such Revolving Loan to those Obligations; provided that after giving effect to any such Revolving Loan, the aggregate outstanding Revolving Loans will not exceed the Total Revolving Commitments then in effect.
Appears in 1 contract
Samples: Credit Agreement (Telecommunication Systems Inc /Fa/)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Revolving Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Commitments and any reduction of the Revolving Commitments shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any reduction of the Revolving Commitments of the Revolving Lenders. Each borrowing by the Borrower from the R/T Lenders hereunder, each payment by the Borrower on account of any commitment fee in respect of the R/T Commitments and any reduction of the R/T Commitments shall be made pro rata according to the respective Revolving Percentages R/T Commitments of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionR/T Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Term Lenders. The amount of each principal prepayment of the Term Loans shall be allocated as provided in applied to reduce the then remaining installments of the Term Loans pro rata based upon the then remaining principal amount of such Section)installments. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, except to . Each payment (including each prepayment) by the extent that this Agreement provides that different Classes Borrower on account of Revolving principal of and interest on the R/T Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving Percentages outstanding principal amounts of the relevant R/T Loans then held by the R/T Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing in this paragraph shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Lender.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the any Borrower from the Lenders hereunder and hereunder, each payment by the any Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata PRO RATA according to the respective Tranche B Term Loan Percentages, Multicurrency Percentages or Revolving Percentages Credit Percentages, as the case may be, of the relevant Lenders. Any Each reduction of the Revolving Total Multicurrency Commitments shall be applied to the amounts of the Lenders shall be made pro rata scheduled reductions of the Total Multicurrency Commitments pursuant to Section 4.3 PRO RATA according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such Sectionoutstanding amounts thereof.
(b) Except as provided in Section 6.11(d), each payment (including each prepayment) of the Tranche B Term Loans shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans PRO RATA based on the principal amount of Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans PRO RATA based on the remaining outstanding principal amount of such installments. Amounts prepaid on account of the Tranche B Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the any Borrower on account of principal of and interest on the Revolving Credit Loans or the Multicurrency Loans shall be made pro rata PRO RATA according to the respective outstanding principal amounts of the Revolving Credit Loans then held by or Multicurrency Loans, as the Lenders (except for prepayments pursuant to Section 2.9(c)case may be, which shall be allocated as provided in such Section). Each payment of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except . Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the extent Issuing Lender that issued such Letters of Credit. In relation to the payment of any amount of euro, such amount shall be made available to the Administrative Agent in immediately available, freely transferable, cleared funds to such account with such bank in Frankfurt am Main, Germany as the Administrative Agent shall from time to time nominate for this Agreement provides purpose.
(d) Notwithstanding anything to the contrary in Sections 6.5 or 6.11, so long as any Multicurrency Commitment is in effect, each Tranche B Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Tranche B Term Loan of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 6.5 that different Classes is allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when any Multicurrency Commitments are in effect, Holdings will, in lieu of Revolving applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph Section 6.5(d), on the date specified in Section 6.5 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from Holdings, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by Holdings to cause the Primary Borrower to prepay on the date (each a "PREPAYMENT DATE") that is 2 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loan of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loan. On the Prepayment Date, (i) the Primary Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts, as applicable, with respect to each Accepting Lender, (ii) the Primary Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders (or, if the aggregate outstanding principal amount of Multicurrency Loans is less than such portion, such lesser amount), and the outstanding Multicurrency Loans shall have different Applicable Marginsbe automatically prepaid by such amount (but without any corresponding permanent reduction in the Multicurrency Commitments), in which case each payment and (iii) the Primary Borrower shall be allocated entitled to retain the Lenders in such Class pro rata according to the respective Revolving Percentages remaining portion of the relevant Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders.
(ce) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City timelocal time in the city of the relevant Payment Office, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding relevant Payment Office, in Dollars (or in euro, in the case of payments of principal or interest in respect of Loans denominated in euro) and in immediately available funds. Any payment made by the Borrower after 12:00 Noon, local time in the city of the relevant Payment Office, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders entitled thereto promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(df) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (iiin the case of amounts in Dollars) a or at the rate determined by the Administrative Agent as its cost of funding such amounts (in accordance with banking industry rules on interbank compensationthe case of amounts in euro), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount (but only to the extent theretofore made available by it to the relevant Borrower) with interest thereon at the rate per annum applicable to ABR LoansBase Rate Loans under the relevant Facility (in the case of Loans denominated in Dollars) or the rate determined by the Administrative Agent as its cost of funding such amounts, PLUS the Applicable Margin for Eurocurrency Loans under such Facility (in the case of Loans denominated in euro) on demand, from the relevant Borrower.
(eg) Unless the Administrative Agent shall have been notified in writing by the relevant Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective RateRate (in the case of Loans denominated in Dollars) or the rate determined by the Administrative Agent as its cost of funding such amounts, PLUS the Applicable Margin for Eurocurrency Loans under such Facility (in the case of Loans denominated in euro). Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the any Borrower.
(h) In the event that (i) a Borrower gives notice to the Administrative Agent that (A) such Borrower intends to make a borrowing under Section 4.2 of Multicurrency Loans denominated in euro, (B) such Borrower intends, on the requested Borrowing Date for such Eurocurrency Loans, to prepay under Section 6.4 Multicurrency Loans denominated in Dollars and (C) after giving effect to such borrowing and prepayment, the Available Multicurrency Commitment shall not be less than zero, and (ii) if (after giving effect to such requested Multicurrency Loans, but before giving effect to such prepayment) the Available Multicurrency Commitment shall be less than zero, the Administrative Agent may, in reliance on the foregoing notice, make available to such Borrower the amount of such requested Multicurrency Loans; PROVIDED, HOWEVER, that, in the event that such Borrower fails to make such prepayment on the requested Borrowing Date, such Borrower shall, without notice or demand, immediately prepay the Multicurrency Loans made to it in an aggregate principal amount equal to the amount by which the aggregate Multicurrency Extensions of Credit exceeds the aggregate Multicurrency Commitments then in effect, together with interest accrued to the date of such prepayment and any amounts payable under Section 6.14.
(i) A payment shall be deemed to have been made by the Administrative Agent on the date on which it is required to be made under this Agreement if the Administrative Agent has, on or before that date, taken all relevant steps to make that payment. With respect to the payment of any amount denominated in euro, the Administrative Agent shall not be liable to any Borrower or any of the Lenders in any way whatsoever for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the Administrative Agent if the Administrative Agent shall have taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in immediately available, freely transferable, cleared funds in the euro unit to the account with the bank in the principal financial center in the Participating Member State which the relevant Borrower or, as the case may be, any Lender shall have specified for such purpose. In this paragraph (i), "all relevant steps" means all such steps as may be prescribed from time to time by the regulations or operating procedures of such clearing or settlement system as the Administrative Agent may from time to time determine for the purpose of clearing or settling payments of euro.
Appears in 1 contract
Samples: Credit Agreement (Six Flags Inc)
Pro Rata Treatment and Payments. (a) Each borrowing by the either Borrower (other than any Competitive Bid Borrowing) from the Lenders hereunder and hereunder, each payment by the either Borrower on account of any commitment facility fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata with respect to the Lenders according to the respective Tranche A Term Percentages, Tranche B Term Percentages, Tranche C Term Percentages or Revolving Percentages Percentages, as the case may be, of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the either Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. Amounts prepaid on account on the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by either Borrower on account of principal of and interest on the Revolving Loans (other than any Competitive Bid Loan) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders (except for prepayments pursuant to Section 2.9(c), which Revolving Lenders. All payments of principal of any Competitive Bid Borrowing shall be allocated as provided pro rata among the Revolving Lenders participating in such Section)Borrowing in accordance with the respective principal amounts of their outstanding Competitive Bid Loans comprising such Borrowing. Each payment All payments of interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment any Competitive Bid Borrowing shall be allocated to pro rata among the Revolving Lenders participating in such Class pro rata according to Borrowing in accordance with the respective Revolving Percentages amounts of the relevant Lendersaccrued and unpaid interest on their outstanding Competitive Bid Loans comprising such Borrowing.
(cd) All payments (including prepayments) to be made by the either Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without deduction, setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the BorrowerBorrowers.
(ef) Unless the Administrative Agent shall have been notified in writing by the relevant Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the either Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each The borrowing by the Borrower Borrowers from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages Term A Loan Commitments or Term B Loan Commitments, respectively, of the relevant Lenders. Any reduction The payment by the Borrowers on account of the Revolving Commitments of the Lenders commitment fees hereunder shall be made pro rata according to the respective Revolving Percentages Commitments of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each The payment (including each prepayment) by the Term A Loan Borrower on account of principal of and interest on the Revolving Term A Loans shall be made (i) in the case of principal, pro rata according to the respective outstanding principal amounts of the Revolving Term A Loans then held by the Lenders Term A Loan Lenders, and (except for prepayments pursuant ii) in the case of interest, pro rata according to Section 2.9(c), which shall be allocated as provided in such Section). Each payment the respective amounts of accrued and unpaid interest on the Revolving Term A Loans then due to the Term A Loan Lenders. Amounts prepaid on account of the Term A Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Term B Loan Borrower on account of principal of and interest on the Term B Loans shall be made (i) in the case of principal and the Repayment Premium, pro rata according to the respective outstanding principal amounts of the Revolving Term B Loans then held by the Term B Loan Lenders, except to and (ii) in the extent that this Agreement provides that different Classes case of Revolving Loans shall have different Applicable Marginsinterest, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages amounts of accrued and unpaid interest on the Term B Loans then due to the Term B Loan Lenders. Amounts prepaid on account of the relevant LendersTerm B Loans may not be reborrowed.
(cd) All cash payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, Agent at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender the applicable Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the a Borrower prior to the date of any payment due to be made by the such Borrower hereunder that the such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the applicable Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the such Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the such Borrower.
Appears in 1 contract
Samples: Credit Agreement (21st Century Oncology Holdings, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Revolving Percentages of the Lenders. Any and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders except (i) to the extent that this Agreement provides for reductions to be disproportionately allocated to a group of Lenders with respect to a particular Class pursuant to Section 2.6, in which case each reduction shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders and (ii) reductions pursuant to Section 2.9(c), which shall be allocated as provided in such SectionLenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans Tranche A Term Loan and Tranche B Term Loan, as the case may be, shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Tranche A Term Lenders (except for prepayments and any Tranche B Term Lenders, respectively. Within each such Facility, the amount of each principal prepayment of the Tranche A Term Loan or the Tranche B Term Loan, as the case may be, made pursuant to Section 2.9(c), which 2.11 shall be allocated applied to reduce the Tranche A Term Loans ratably as provided between the Tranche A Term Lenders or any Tranche B Term Loans ratably as between the Tranche B Term Lenders, that provide for pro rata allocation in such Section)direct order to the respective next eight (8) scheduled principal installments, and pro rata among the remaining respective installments thereafter. Amounts prepaid on account of the Term Loans may not be reborrowed. The amount of each principal prepayment of the Term Loans made pursuant to Section 2.10(a) shall be applied to reduce the remaining principal installments of the Term Loans as directed by the Borrower with respect to Facility and order.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Lenders, except to the extent that this Agreement provides that different Classes of Revolving Loans shall have different Applicable Margins, in which case each payment shall be allocated to the Lenders in such Class pro rata according to the respective Revolving Percentages of the relevant Lenders.
(cd) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(de) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective NYFRB Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such LenderXxxxxx’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower.
(ef) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the greater of the NYFRB Rate and a rate per annum equal to determined by the daily average Federal Funds Effective RateAdministrative Agent in accordance with banking industry rules on interbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(c), 2.7(d), 2.17(e), 2.17(f), 3.4(a) or 9.7 (unless subject to a good faith dispute), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received by the Administrative Agent, the Swingline Lender or the Issuing Lender for the account of such Lender under this Agreement to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower of Five-Year Loans, Term Loans and New Term Loans from the Lenders hereunder and hereunder, each payment by the Borrower on account of any commitment fee shall be made pro rata according hereunder and, subject to the respective Revolving Percentages last sentence of the Lenders. Any Section 2.4, any reduction of the Revolving Five-Year Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages Five-Year Commitment Percentages, Term Percentage or New Term Percentage, as the case may be, of the relevant Lenders except (i) Lenders. Subject to the extent that this Agreement provides for reductions to be disproportionately allocated to a group last sentence of Lenders with respect to a particular Class pursuant to Section 2.62.4, in which case each reduction payment (including each prepayment) by the Borrower on account of principal of and interest on the Five-Year Loans shall be allocated to the Lenders in such Class made pro rata according to the respective Revolving outstanding principal amounts of the Five-Year Loans then held by the Five-Year Lenders. Each borrowing of Five-Year Loans from the Lenders hereunder, each payment by the Borrower on account of any fee hereunder and, subject to the last sentence of Section 2.4, any reduction of the Five-Year Loans of the Lenders shall be made pro rata according to the Five-Year Commitment Percentages of the relevant Lenders Lenders. Each payment by the Borrower on account of principal of and (ii) reductions pursuant to Section 2.9(c), which interest on any Borrowing of Competitive Loans shall be allocated as provided made pro rata among the Lenders participating in such Section.
(b) 509265-1918-Active.17170865.29 Borrowing according to the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving (i) Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Term Loans then held by the Term Lenders and (except for prepayments pursuant to Section 2.9(c), which shall be allocated as provided in such Section). Each payment of interest on the Revolving ii) New Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving New Term Loans then held by the New Term Lenders, except to . The amount of each principal prepayment of the extent that this Agreement provides that different Classes of Revolving (x) Term Loans shall have different Applicable Margins, in which case each payment be applied to reduce the then remaining installments of the Term Loans on a pro rata basis and (y) New Term Loans shall be allocated applied to reduce the Lenders in such Class then remaining installments of the New Term Loans on a pro rata according to the respective Revolving Percentages basis. Amounts prepaid on account of the relevant LendersTerm Loans and New Term Loans may not be reborrowed.
(cb) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 2:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding OfficeAdministrative Agent’s office specified in Section 9.2, in Dollars and in immediately available funds. Notwithstanding the foregoing, the failure by the Borrower to make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall not constitute a Default or Event of Default if such payment is made on such due date; provided, however, that any payment (or prepayment) made after such time on such due date shall be deemed made on the next Business Day for the purposes of interest and reimbursement calculations. The Administrative Agent shall distribute such payments to each the relevant Lender Lenders promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(dc) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR LoansLoans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be 509265-1918-Active.17170865.29 deemed to limit the rights of the Borrower against any Lender who fails to make its share of such borrowing available.
(ed) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc)
