Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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 relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such 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 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. (b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower. (c) Notwithstanding anything contained in this Agreement: (i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement, Credit and Guarantee Agreement (Sirva Inc)
Pro Rata Treatment and Payments. (a) Each Subject to Section 2.31, (a) each borrowing by any Borrower of Dollar Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be mademade pro rata according to the respective Borrowing Percentages of the relevant Lenders, (b) each payment by the any Borrower on account of any commitment facility fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit relevant Lenders and (c) each borrowing by any Borrower of Multicurrency Loans from the Multicurrency Lenders hereunder and any reduction of the Multicurrency Subcommitments of the Multicurrency Lenders shall be made pro rata according to the respective Multicurrency Percentages of the Multicurrency Lenders. Each .
(b) Subject to Section 2.31, (a) each payment (including each prepayment) by the any Borrower on account of principal of and interest on any the Dollar Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Dollar Revolving Loans then held by the Term Loan Lenders and (b) each payment (including each prepayment) by any Borrower on account of principal of and interest on the Multicurrency Loans shall be made pro rata according to the respective outstanding principal amounts of the Multicurrency Loans then held by the Multicurrency Lenders. .
(c) All payments (including prepayments) to be made by the Borrower hereunderany Borrower, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off deduction for any defense, recoupment, setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2its 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 L/C Obligations 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 any Designated Foreign Currency, such Designated the relevant Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bd) 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 Revolving Credit Commitment Percentage share 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 relevant 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 at a rate equal to the daily average Federal Funds Effective Rate Overnight Rate, plus any applicable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum applicable to ABR Loans hereunderLoans, 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.
(ce) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the applicable Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it such Borrower hereunder (any that such Lender, a “Defaulting Lender”)Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that such Borrower is making such payment, and the Administrative Agent may, but shall have not be required to, in reliance upon such assumption, make available to the right to seek one or more Persons reasonably satisfactory relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent and by the applicable Borrower to each become a substitute Revolving Credit Lender and assume all or part of the Revolving Credit Commitment of within three Business Days after such Defaulting Lender. In such event, the Borrowerdue date, the Administrative Agent and 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 substitute Revolving Credit Lender amount with interest thereon at the rate per annum equal to the Overnight Rate. Nothing herein shall execute and deliver, and such Defaulting Lender shall thereupon be deemed to have executed and deliveredlimit the rights of the Administrative Agent or any Lender against the Borrowers 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, an appropriately completed Assignment and Acceptance to effect such substitutionabsent manifest error.
(iif) In determining The obligations of the Required LendersLenders 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 that at the time is a Defaulting Lender (and the Loans and Revolving Credit Commitment of to make any Loan, to fund any 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 participation or to make any payment under Section 8.7 on any Loan Document date required hereunder shall not relieve any other Lender of its corresponding obligation to or do so on such date, and no Lender shall be responsible for the account failure of a Defaulting Lenderany other Lender to so make its Loans, then the Borrower, so long as it is then permitted to borrow Revolving Credit Loans hereunder, may set off and otherwise apply purchase its obligation participation or to make such its payment against the obligation of such Defaulting under Section 8.7.
(g) Failure to Satisfy Conditions Precedent. If any Lender makes available 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 funds 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderas 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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments Maximum Amount and each payment of the Revolving Credit Lenders fees under Sections 3.3(a) shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages respective Stated Percentage of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Loans and Reimbursement Obligations shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Loans and Reimbursement Obligations (or participations therein) then held by the Term Loan Lenders, but principal payments shall be applied first to Reimbursement Obligations, Base Rate Loans and thereafter to Eurodollar Loans or Cost of Funds Loans. Each payment of fees under Section 3.3(a) shall be made pro rata according to the respective Stated Percentages of the Lenders. Each reduction of the Maximum Amount pursuant to Section 4.1 shall be made pro rata according to the Stated Percentages of the Lenders. Payments shall be applied to accrued and unpaid interest, fees under Section 3.3(a) and the principal amount of the Loans and Reimbursement Obligations prior to Cash Collateralizing L/C Obligations.
(b) All payments (including prepayments) to be made by the Borrower hereunder on account of principal of Loans shall be accompanied by a payment in an amount equal to all accrued and unpaid interest on such Loans. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principalprincipal (other than Daylight Overdraft Loans), interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., p.m. (New York City time, ) on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s 's office specified in subsection 13.2, Section 11.2 in United States Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 1:00 p.m. (New York City time) on any Business Day (other than on account of Daylight Overdraft Loans) shall be deemed to have been received made on and, with respect to principal payments, interest shall continue to accrue until, the next following Business Day. All payments made by the Borrower on account of Daylight Overdraft Loans shall be made without set-off or counterclaim and shall be made prior to 4:30 p.m. (New York City time) on the Borrowing Date of such Daylight Overdraft Loan (or such later time determined by the Daylight Overdraft Lender in its sole discretion, such later time not to be later than 10:00 a.m. (New York City time) on the next Business Day following the Borrowing Date therefor) to the Administrative Agent for the account of the Daylight Overdraft Lender at the Administrative Agent's office specified in Section 11.2 in United States Dollars and in immediately available funds. Any payment on account of Daylight Overdraft Loans made by the Borrower after the time specified in the immediately preceding sentence on any Business Day shall be deemed to have been made on and, with respect to principal payments, interest shall continue to accrue until, the next following Business Day. The Administrative Agent shall distribute such payments payments, in the case of Revolving Credit Loans, to such the relevant Lenders, if any such payment is received prior in the case of Daylight Overdraft Loans, to 1:00 P.M.the Daylight Overdraft Lender and, New York City timein the case of Swing Line Loans, on a Business Dayto the Swing Line Lender, promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 obligation 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 of such payment thereof 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, 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.
(bc) 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 Revolving Credit Commitment Stated 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, Agent on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate or such higher overnight rate then in effect in accordance with banking industry rates or standard practices in New York, New York on interbank compensation, as determined by the Administrative Agent 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 subsection Section 4.9 shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment 's Stated Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 for its own account with interest thereon at the rate per annum applicable to ABR Base Rate Loans hereunder, on demand, from the BorrowerBorrower (without duplication of the interest otherwise applicable thereto).
(cd) Notwithstanding anything contained in The failure by any Lender to make a payment required under this Agreement:
(i) If at Agreement or any time a Revolving other Loan Document, whether on account of any Loan, Letter of Credit Lender or otherwise, shall not make a Revolving Credit affect the obligations of any other Lender under this Agreement or the other Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 Borrower, the Administrative Agent and any such substitute Revolving Credit Lender shall execute and deliverDocuments, 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 no Lender shall be a Defaulting Lender.
(iii) If at responsible for the failure of any time the Borrower shall be required other Lender to make comply with its obligations under this Agreement or any payment under any other Loan Document to or for the account of be released from its obligations hereunder or thereunder as 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 determineresult thereof.
(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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Aegean Marine Petroleum Network Inc.), Uncommitted Credit Agreement (Aegean Marine Petroleum Network Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each payment of the Loans (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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 satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent. Notwithstanding the foregoing, if the Administrative Agent in escrow receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in Section 8(f), or otherwise) (including the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Revolving Credit Lender or L/C Participant), and applied 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) (together with 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 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor the Defaulted Amount.
Appears in 2 contracts
Samples: Credit Agreement (Hudson Pacific Properties, Inc.), Credit Agreement (Hudson Pacific Properties, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Except as otherwise provided in Section 2.25, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be allocated among the Lenders holding such Term Loans pro rata based on the principal amount of such Term Loans held by such Lenders. The amount of each principal prepayment of the Term Loans shall be applied first, to the four immediately succeeding installments of such Term 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.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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 Letters of Credit.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon, New York City time, on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
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 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 Federal Funds Effective Rate 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 at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.16(f), the Borrower shall have the right to seek one 2.16(g), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 Lender for 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 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 Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 2 contracts
Samples: Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages, L/C Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Except as otherwise provided herein, 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 (whether 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 then outstanding Term Loans on a pro rata basis regardless of type. 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 any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off condition or counterclaim ordeduction for any counterclaim, except as permitted under subsection 4.11defense, other deduction recoupment or setoff and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received. Any payment received prior to the end of such Business Day and otherwise by the Administrative Agent after 10:00 A.M. shall distribute such payment to such Lenders be deemed received on the next succeeding Business DayDay and any applicable interest or fee shall continue to accrue. 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 of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a the proposed date of any borrowing that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit 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 in respect of such borrowing 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 Revolving Credit 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 daily average greater of (A) the Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent. A certificate of and (B) a rate determined by the Administrative Agent submitted to any Revolving Credit Lender in accordance with respect to any amounts owing under this subsection shall be conclusive banking industry rules on interbank compensation, and (ii) in the absence case of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not a payment to be made available to by the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing DateBorrower, 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing 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 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 Administrative Agent in accordance with banking industry rules on interbank 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 Agreement: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 a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made insufficient funds are received by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory 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 Borrower parties entitled thereto in accordance with the amounts of interest and fees, Overadvances and Protective Overadvances then due to each become a substitute Revolving Credit 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 and assume all shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or part 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 Credit Commitment Percentage or L/C Percentage, as applicable, of such Defaulting Lender. In payment on account of the Loans or participations obtained by all of the Lenders, such event, the Borrower, 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 substitute Revolving Credit Lender participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall execute be rescinded and deliverthe purchase price restored to the extent of such recovery, without interest 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, provisions of this paragraph shall not be construed to apply to (x) any Lender that at payment made by the time is 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 (and the Loans and Revolving Credit Commitment of such 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 be excluded and disregardedapply). 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 commitment fee shall accrue for documentation other than notices and the account of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(iiilike referred to in this Section 2.18(k) If at any time the Borrower shall be required to make 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 under any Loan Document made by or on behalf of the Borrower pursuant to or for and in accordance with the account express terms of this Agreement (including the application of funds arising from the existence 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)) the application of Cash Collateral provided for in Section 3.10, or (iii) above; any payment obtained by a Lender as consideration for the assignment of or (v) sale of a participation in any Defaulting Lender shall be generally unable toof its Loans or sub-participations in any L/C Exposure to any assignee or participant, or shall admit in writing its general inability to, pay its debts as they become due; other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall be required to pay any amount under any apply). The Borrower consents on behalf of itself and each other 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 Party to the Administrative Agentforegoing and agrees, to be (to the extent permitted by it may effectively do so under applicable law and law, that any Lender acquiring a participation pursuant to the extent not utilized 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 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 satisfy obligations of the Defaulting Lender owing to it) held by contrary in this Agreement, the Administrative Agent may, in escrow pursuant its discretion at any time or from time to its standard terms (including as 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 earning portion of interest), the Obligations constituting overdue interest and applied (together with any accrued interest) by it fees and Swingline Loans from time to time due and payable to make itself, any Revolving Credit 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 or other payments as and when required to be made by such Defaulting Lender hereunderwill 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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Section 2.18(c), each payment (other 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 amounts of such obligations owing to the Lenders pro rata according to the respective 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 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) 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 reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account in respect of principal Reimbursement Obligations in connection with any Letter of and interest on any Term Loans Credit shall be allocated by the Administrative Agent pro rata according made to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Issuing Lender.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst 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 of Revolving Credit Loans by the Borrower or any Subsidiary Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders; provided that at the option of the Borrower, all or a portion of any optional prepayments of the Term Loans made in accordance with Section 2.10 may be applied to repay the Term Loans as directed by the Borrower. The amount of each such optional principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche B Term Loans as directed by the Borrower. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower or any Subsidiary 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.
(d) All payments (including prepayments) to be made by the Borrower or any Subsidiary Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars or, in the case of L/C Obligations or in any Designated Foreign Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, other applicable currency and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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. Any obligation under this Agreement denominated in currency other than Dollars should be payable in such currency unless the obligor, the obligee and the Administrative Agent shall otherwise agree.
(be) 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 Revolving Credit Commitment Percentage share 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 or any Subsidiary 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 Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal up to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower or relevant Subsidiary Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower or relevant Subsidiary Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and such Subsidiary Borrower hereunder that the 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 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 Subsidiary 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower or such Subsidiary Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 relevant Subsidiary Borrower within three 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or any accrued interest) by it from time to time to make Lender against the Borrower or any Revolving Credit Loans or other payments as and when required to be made by such Defaulting Lender hereunderSubsidiary Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Avis Budget Group, Inc.), Credit Agreement (Avis Budget Group, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant 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 amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(including each prepaymentb) by the Borrower Each prepayment (whether mandatory or optional) on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by applied, first, in direct order of maturity, to any principal repayment installments of the Administrative Agent 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 such Revolving Credit the Term Loans then held by the Revolving Credit Term Loan Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Term Loans shall be allocated by the Administrative Agent 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 Revolving Credit Lenders.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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, but shall not be required to, 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 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 subsection paragraph shall be conclusive presumed correct in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 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 Base Rate Loans under the relevant Facility, on the Business Day following the date of demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment being made 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 Business Days of such 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 applicable to ABR Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory equal to the Administrative Agent and the Borrower to each become a substitute Revolving Credit Lender and assume all or part of the Revolving Credit Commitment of such Defaulting Lenderdaily average Federal Funds Effective Rate. 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 Nothing herein shall be deemed to constitute a Revolving Credit Loan by such Defaulting Lender made on limit the date rights 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 Lender 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche B Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Tranche B Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit the Tranche B Term Loans then held by the Revolving Credit Term Lenders. The amount of each principal prepayment of the Tranche B Term Loans (including prepayments pursuant to Sections 4.1 and 4.2) shall be applied to reduce the then remaining installments of the Tranche B Term Loans pro rata based upon the then remaining principal amount thereof. 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 any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to relieve any Lender from its obligation under its Commitment or to limit the rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Innophos, Inc.), Credit Agreement (Innophos Investment Holdings, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit respective Commitment Percentages of the Revolving Credit Lenders. Each payment under this Credit Agreement or any Credit Document shall be applied (including each prepaymenti) first, to any Fees then due and owing, (ii) second, to interest then due and owing in respect of the Loans to the Borrower and (iii) third, to principal then due and owing hereunder and under the Loans to the Borrower. Each payment on account of the Commitment Fees or the Letter of Credit Fees shall be made pro rata in accordance with the respective amounts due and owing. Each payment (other than voluntary repayments and mandatory prepayments) by the Borrower on account of principal of and interest on any Revolving Credit the Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts due and owing hereunder in the currency in which such amount is denominated and in such funds as are customary at the place and time of payment for the settlement of international payments in such Revolving Credit currency. Without limiting the terms of the preceding sentence, accrued interest on any Foreign Currency Loans then held by shall be payable in the Revolving Credit Lenderssame Foreign Currency as such Loan. Each payment (including each prepayment) by the Borrower voluntary repayment and mandatory prepayment on account of principal of and interest on any Term the Loans shall be allocated applied in accordance with Section 2.8. With respect to Competitive Loans, if the Borrower fails to specify the particular Competitive Loan or Loans as to which any payment or other amount should be applied and it is not otherwise clear as to the particular Competitive Loan or Loans to which such payment or other amounts relate, or any such payment or other amount is to be applied to Competitive Loans without regard to any such direction by the Administrative Agent Borrower, then each payment or prepayment of principal on Competitive Loans and each payment of interest or other amount on or in respect of Competitive Loans, shall be allocated pro rata according to among the respective relevant Competitive Loan Lenders in accordance with the then outstanding principal amounts of the Term Loans then held by the Term Loan Lenderstheir respective Competitive Loans. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, interest and fees shall be made without defense, set-off or counterclaim or, (except as permitted under subsection 4.11, other deduction provided in Section 2.18(b)) and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, Agent for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s 's office specified in subsection 13.2, Section 10.2 in Dollars or, immediately available funds (or at such other location mutually agreed to by the Administrative Agent and the Borrower with respect to Foreign Currency Loans) and (A) in the case of L/C Obligations Loans or other amounts denominated in any Designated Dollars, shall be made in Dollars not later than 1:00 P.M. on the date when due and (B) in the case of Loans or other amounts denominated in a Foreign Currency, shall be made in such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, in immediately available funds. Payments received not later than the Applicable Time specified by the Administrative Agent after such time shall be deemed to have been received on the next Business Daydate when due. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders entitled thereto promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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, 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 LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Hni Corp), Credit Agreement (Hni Corp)
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 Revolving Credit Lenders hereunder shall be made, each made pro rata according to the Funding Commitment Percentages of the Lenders in effect on the date of such borrowing. Each payment by the U.S. Borrower on account of any commitment facility fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any 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 Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, Agent among the Lenders pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each Except as provided in 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 any the Revolving Credit Loans shall be 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 Term Loans then held by the Term Loan Lendersthereof. All payments (including prepayments) to be made by the U.S. Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s 's office specified in subsection 13.215.2, in Dollars 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, and 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 such Lenders, if any such payment is received prior the Lenders entitled to 1:00 P.M., New York City time, on a Business Day, receive the same promptly upon receipt in like funds as received prior received.
(ii) Each borrowing of Multicurrency Loans by any Foreign Subsidiary Borrower shall be made, and any reduction of the Multicurrency Commitments shall be allocated by the Administrative Agent, pro rata according to the end 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 Foreign Subsidiary Borrower to each 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 Business Day 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 otherwise the in immediately available funds. The Administrative Agent shall distribute such payment payments to such the Multicurrency Lenders on entitled to receive the next succeeding Business Day. 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 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.
(b) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing Borrowing Date that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 applicable 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 at a rate per annum equal to (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans or CAF Advances) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds (in the case of a borrowing of Multicurrency Loans), in each case 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.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 borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit the Term Loans then held by the Revolving Credit 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 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 any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderLoans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc), Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche A Term Percentages, Tranche B Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit the Term Loans then held by the Revolving Credit Term Lenders; provided, that optional prepayments shall be allocated to the installments of the relevant 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 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 any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata to the Revolving Lenders according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst 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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by made pro rata according to the Administrative Agentrespective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and each casepayment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Lenders, pro rata according to the relevant Revolving Credit Commitment Percentages respective amounts then due and owing to such Lenders.
(b) Each optional prepayment of the Revolving Credit LendersTerm Loans shall be applied to the remaining installments thereof as specified by the Borrower. Each mandatory prepayment on account of principal of and interest on the Term Loans pursuant to Section 2.12 shall be applied to any installments thereof in direct order of maturity. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepaymentprepayments) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving 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.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made in Dollars without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 CurrencyFunding Office, 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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, Agent on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive presumptively correct in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Borrowing Date, the Administrative Agent shall notify give notice of such fact to 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Yankee Finance, Inc.), Credit Agreement (Yankee Holding Corp.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower Company on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower Borrowers on account of principal of and interest on any Revolving Credit Loans shall be 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 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 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 2.8, the amount of principal prepayment shall be applied as 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 Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 relevant Borrower in respect of such borrowing 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 Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the BorrowerBorrowers.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Company prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it the Borrowers hereunder (any such Lender, a “Defaulting Lender”), that the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 Borrowers will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Borrowers within three 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest)the Administrative Agent or any Lender against the Borrowers.
(g) Notwithstanding anything to the contrary in this Agreement, and applied (together the Borrowers, with any accrued interest) by it 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 time, to make any Revolving Credit purchase or prepay Loans on a non-pro rata basis and nothing in this Section 2.15 shall prohibit such transactions or other require payments as and when required made in connection therewith to be made by 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 Defaulting 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 hereunderonly 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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect the Facility Fee or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders under any Facility, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(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 Revolving Credit 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. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts Series 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 made pro rata according to the respective outstanding principal amounts of the Term Loans in such Series then held by the 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 pm, local time in New York City timeCity, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such 2:00 pm, local time in New York City, on any Business Day shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding 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, 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 Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing of Loans that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by applicable law the Borrower within three 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 utilized 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 to satisfy obligations of Agent, at the Defaulting Lender owing to itFederal Funds Rate from the due date until (but not including) held by the date on which the Administrative Agent in escrow makes such payments to such Lender. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in Section 8.1(f), or otherwise) (including the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Revolving Credit Lender or L/C Participant), and applied 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) (together with 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 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor 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 of Revolving Credit Loans by the Borrower from the Revolving Credit 1 Lenders hereunder shall be made, each 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 in respect of the Revolving Credit Commitments hereunder 1 Commitment Fee or Revolving 2 Commitment Fee shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment 1 Percentages or Revolving Credit 2 Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Sections 2.18(b) and (c), each payment (other 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 amounts of such obligations owing to the Lenders pro rata according to the respective 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. For purposes of clarification, Permitted Loan Repurchases shall not constitute payments (or prepayments) of Loans for any purpose hereunder.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 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. All 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 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 (other than pursuant to Section 10.6(g)) 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. 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 such Lenders, (ii) the Borrower may apply prepayments of the Revolving Credit Loans under Sections 2.11 and 2.12(f) to the Revolving Credit 1 Loans and/or the Revolving Credit 2 Loans in such percentages as the Borrower may elect, 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, (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.
(d) Subject to Section 2.20, all payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 the Loans hereundermade pursuant to such borrowing as if they were Base Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst 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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(a) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(b) The application of any payment of Loans (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each payment of the Loans (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received ; provided that, any payments of Swing Line Loans shall be made by the Administrative Agent Borrower directly to the applicable Swing Line Lender at the payment office specified by such Swing Line Lender. Any payment made by the Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.2:00 pm, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(bd) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing of Revolving Credit Loans that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(ce) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a payment of Revolving Credit Lender shall not make a Revolving Credit Loan required Loans due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Revolving Credit Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Revolving Credit 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 Lenders, the Administrative Agent shall promptly distribute such payments to satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent. Notwithstanding the foregoing, if the Administrative Agent in escrow receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in Section 8.1(f), or otherwise) (including the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Revolving Credit Lender or L/C Participant), and applied 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) (together with 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 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor the Defaulted Amount.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Chatham Lodging Trust), Credit Agreement (Chatham Lodging Trust)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower Borrowers on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, Loans and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Lenders. Each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Lenders 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 Credit Loans shall be allocated among the Lenders pro rata based on the 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 any Revolving Credit Loans the Term Loans, shall be allocated by among the Administrative Agent Lenders pro rata according to based on 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 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 LendersAmendment 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, 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, Reimbursement Obligations 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 set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Payment Office, in Dollars orand 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 case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign applicable Alternative Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 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 Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective NYFRB Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit LenderXxxxxx’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderBase Rate Loans, on demand, from the applicable Borrowers.
(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment being made 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 Business Days of such 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 NYFRB Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(ig) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.13(e), the Borrower shall have the right to seek one 2.13(f), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent and the Borrower to each become a substitute Revolving Credit Lender and assume all or part may, in its discretion (notwithstanding any contrary provision of the Revolving Credit Commitment of such Defaulting Lender. In such eventthis Agreement), the Borrower, apply any amounts thereafter received by the Administrative Agent and any such substitute Revolving Credit or the Issuing 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 Lender to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under 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 to satisfy Sections until all such unsatisfied obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderare 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 of Revolving Credit Loans (other than Swing Line Loans) by any of the Borrower Borrowers from the Revolving Credit Lenders hereunder 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 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 relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by any of the Borrower Borrowers on account of principal of and interest on any Revolving Credit Loans shall be 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 Borrower 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 Term Loans of such Tranche then held by the Term Loan respective Lenders. All payments (including prepayments) to be made by any of the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.211.2, 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 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such 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 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.
(b) 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 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 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 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 Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to (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 Rate, as quoted by the Administrative Agent, in each case 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s 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 Revolving Credit Lender within three Business Days of such Borrowing Date, (x) the Administrative Agent shall notify the Parent 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, in the case of Loans to be made in Dollars, ABR Loans hereunderhereunder 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).
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Parent Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 2 contracts
Samples: Credit Agreement (VWR International, Inc.), Credit Agreement (VWR International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages, L/C Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Except as otherwise provided herein, 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. Any prepayment of Loans shall be applied to the then outstanding Term Loans on a pro rata basis regardless of type. 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 any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off condition or counterclaim ordeduction for any counterclaim, except as permitted under subsection 4.11defense, other deduction recoupment or setoff and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received. Any payment received prior to the end of such Business Day and otherwise by the Administrative Agent after 10:00 A.M. shall distribute such payment to such Lenders be deemed received on the next succeeding Business DayDay and any applicable interest or fee shall continue to accrue. 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 of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a the date of any borrowing that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 AgentAgent on such date in accordance with Section 2, 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 in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Revolving Credit Lender shall and the Borrower severally agree to pay to the Administrative Agent, on demand, such corresponding amount with interest thereon 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 daily average greater of (A) the Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent. A certificate of Rate, and (B) a rate reasonably determined by the Administrative Agent submitted to any Revolving Credit Lender in accordance with respect to any amounts owing under this subsection shall be conclusive banking industry rules on interbank compensation, and (ii) in the absence case of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not a payment to be made available to by the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing DateBorrower, 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower is making such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable 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 the Lenders or the applicable 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 such 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 Administrative Agent in accordance with banking industry rules on interbank 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 Agreement: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 a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made insufficient funds are received by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory 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 Borrower parties entitled thereto in accordance with the amounts of interest and fees then due to each become a substitute Revolving Credit 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 and assume all shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or part 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 Credit Commitment Percentage or L/C Percentage, as applicable, of such Defaulting Lender. In payment on account of the Loans or participations obtained by all of the Lenders, such event, the Borrower, Lender shall forthwith advise the Administrative Agent and any of the receipt of such substitute Revolving Credit Lender shall execute and deliverpayment, and within five Business Days of such Defaulting Lender shall thereupon be deemed to have executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution.
receipt purchase (iifor cash at face value) In determining from the Required 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 that at so purchasing a participation from another Lender pursuant to this Section 2.16(k) may exercise all its rights of payment (including the time is a Defaulting 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 Loans and Revolving Credit Commitment of such Defaulting Lenderlike referred to in this Section 2.16(k) 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 implement the terms of this Section 2.16(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 2.16(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 2.16(k) shall not be construed to apply to (i) any payment under any Loan Document made by or on behalf of the Borrower pursuant to or for and in accordance with the account express terms of this Agreement (including the application of funds arising from the existence 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)) the application of Cash Collateral provided for in Section 3.10, or (iii) above; any payment obtained by a Lender as consideration for the assignment of or (v) sale of a participation in any Defaulting Lender shall be generally unable toof its Loans or sub-participations in any L/C Exposure to any assignee or participant, or shall admit in writing its general inability to, pay its debts as they become due; other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall be required apply unless such assignment is consented to pay any amount under any by the Required Lenders). The Borrower consents on behalf of itself and each other 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 Party to the Administrative Agentforegoing and agrees, to be (to the extent permitted by it may effectively do so under applicable law and law, that any Lender acquiring a participation pursuant to the extent not utilized 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 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 satisfy obligations of the Defaulting Lender owing to it) held by contrary in this Agreement, the Administrative Agent may, in escrow pursuant its discretion at any time or from time to its standard terms (including as 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 earning portion of interest), the Obligations constituting overdue interest and applied (together with any accrued interest) by it fees and Swingline Loans from time to time due and payable to make itself, any Revolving Credit Lender, the Swingline Lender or any 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 or other payments as and when required to be made by such Defaulting Lender hereunderwill not exceed the Total Revolving Commitments then in effect.
Appears in 2 contracts
Samples: Credit Agreement (Extreme Networks Inc), Credit Agreement (Extreme Networks Inc)
Pro Rata Treatment and Payments. (a) Each Subject to Section 2.31, (a) each borrowing of Revolving Credit Loans by the Borrower of Dollar Revolving Loans from the Revolving Credit Lenders hereunder shall be mademade pro rata according to the respective Borrowing Percentages of the relevant Lenders, (b) each payment by the Borrower on account of any commitment facility fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit relevant Lenders and (c) each borrowing by the Borrower of Multicurrency Loans from the Multicurrency Lenders hereunder and any reduction of the Multicurrency Subcommitments of the Multicurrency Lenders shall be made pro rata according to the respective Multicurrency Percentages of the Multicurrency Lenders. Each
(b) Subject to Section 2.31, (a) each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Dollar Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Dollar Revolving Credit Loans then held by the Revolving Credit Lenders. Each Lenders and (b) each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term the Multicurrency Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Multicurrency Loans then held by the Term Loan Multicurrency Lenders. .
(c) All payments (including prepayments) to be made by the Borrower hereunderBorrower, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2its Funding Office, in Dollars (based on the Dollar Equivalent thereof in the case of fees payable under Section 2.14(c) with respect to Letters of Credit denominated in Foreign Currencies) and in immediately available funds (or, in the case of L/C Obligations 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 any Designated Foreign Currency, such Designated the relevant Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bd) 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 Revolving Credit Commitment Percentage share 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, (i) in the case of amounts denominated in Dollars, such amount with interest thereon at a rate equal to the daily average greater of (X) the Federal Funds Effective Rate and (Y) 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 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 until such 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum applicable to ABR Loans hereunderLoans, 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 Administrative Agent to be the cost to it of funding such amount, on demand, from the Borrower.
(ce) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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, (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 Rate and (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate per annum determined by the Administrative Agent to satisfy obligations be the cost to it of funding such amount. Nothing herein shall be deemed to limit the Defaulting Lender owing to it) held by rights of the Administrative Agent in escrow pursuant to its standard terms (including as to or any Lender against the earning of 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 Defaulting Lender hereunderBorrower.
Appears in 1 contract
Samples: Credit Agreement (Kennametal Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment (other 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 amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit Term Loans then held by due and owing to the Revolving Credit Term Loan 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 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 any Term the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan Revolving Credit Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on within two Business Days of the Administrative Agent's demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Salton Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche B Term Loan Percentages, Incremental Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Section 2.18(c), each payment (other than prepayments as set forth in Sections 2.18 (b) or (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 amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders. The application of any prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each optional prepayment of the Term Loans made pursuant to Section 2.11 and each mandatory prepayment required by Section 2.12 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account in respect of principal Reimbursement Obligations in connection with any Letter of and interest on any Term Loans Credit shall be allocated by the Administrative Agent pro rata according made to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Issuing Lender.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Section 2.18(c), each payment (other than prepayments as set forth in Sections 2.18(b) or (c)) in respect of principal or interest in respect of the Term 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 pro rata according to the respective amounts then due and owing to the Lenders. The application of any prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate Loans and, second, to LIBO Rate Loans.
(b) Each payment (including each prepayment) of the Term Loans outstanding under the Term Loan Facility 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 reduce the then remaining installments of such Term Loans pro rata based upon the then 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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 Letters of Credit.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans under such Facility and, second, to LIBO Rate Loans under such Facility. Each payment of the Loans (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars orPayment Office, in the case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign Applicable Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. If any payment hereunder (other than payments on the Eurodollar LIBO Rate 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 LIBO Rate Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made by the Borrower shall be required to make any payment under any Loan Document to or for hereunder that 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 Borrower will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest)the Administrative Agent or any Lender against the Borrower.
(h) The Administrative Agent reserves the right to apply against the repayment of any Obligations owing in any currency, any repayment and other amounts that may be applied (together in accordance with any accrued interest) by it from time other provisions of this Agreement to time to make any Revolving Credit Loans repay such Obligations, regardless of the currency in which such repayments and amounts were received or other payments as and when required to be made by such Defaulting Lender hereunderare held.
Appears in 1 contract
Samples: Credit Agreement (Tronox Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the any Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Commitment shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit respective Commitment Percentages Percentages, as applicable, of the Revolving Credit Lenders. Each payment (including each prepayment) by the any Borrower on account of principal of and interest and fees on any the Revolving Credit Loans and Reimbursement Obligations shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans and Reimbursement Obligations then held by the Term Loan Lenders.
(b) All payments (including prepayments) to be made by the Borrowers hereunder on account of principal of Loans (other than Base Rate Loans) shall be accompanied by a payment in an amount equal to all accrued and unpaid interest on such Loans. All payments (including prepayments) to be made by the Borrower hereunderBorrowers hereunder (other than in respect of Daylight Overdraft Loans), whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., p.m. (New York City time, ) on the due date thereof to the Administrative Agent, in the case of Revolving Credit Loans, for the account of the Lenders holding the relevant Loans or the L/C ParticipantsLenders, as and in the case may beof Swing Line Loans, for the account of the Swing Line Lender, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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, Section 11.2 in immediately available funds. Payments received All payments made by the Borrowers on account of Daylight Overdraft Loans shall be made without set-off or counterclaim and shall be made prior to 4:00 p.m. (New York City time) on the Borrowing Date of such Daylight Overdraft Loan to the Administrative Agent after such time shall be deemed to have been received on for the next Business Dayaccount of the Daylight Overdraft Lender at the Administrative Agent’s office specified in Section 11.2 in immediately available funds. The Administrative Agent shall distribute such payments payments, in the case of Revolving Credit Loans, to such the Lenders, if any such payment is received prior in the case of Daylight Overdraft Loans, to 1:00 P.M.the Daylight Overdraft Lender, New York City timeand in the case of Swing Line Loans, on a Business Dayto the Swing Line Lender, promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 obligation 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 of such payment thereof 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, 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.
(bc) 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 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 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 Revolving Credit Lender shall pay to the Administrative Agent, Agent on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate 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 subsection Section 4.9 shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s 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 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 Base Rate Loans hereunder, on demand, from the BorrowerBorrowers (without duplication of the interest otherwise applicable thereto).
(cd) Notwithstanding anything contained in this Agreement:
The application of any payment of Loans (iincluding optional and mandatory prepayments) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required be made, first, to be made by it hereunder (any such LenderBase Rate Loans, a “Defaulting Lender”)second, the Borrower shall have the right to seek one or more Persons reasonably satisfactory Cost of Funds Loans, and third, to the Administrative Agent and the Borrower to each become a substitute Revolving Credit Lender and assume all or part Eurodollar Loans. Each payment of the Revolving Credit Commitment Loans (except in the case of such Defaulting Lender. In such eventDaylight Overdraft Loans, 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 Swing Line Loans and Revolving Credit Commitment of such Defaulting LenderLoans that are Base Rate Loans) 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 accompanied by accrued interest 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 payment on the Administrative Agent may reasonably determineamount paid.
(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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Tranche A Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Section 2.18(c), each payment (other than prepayments as set forth in Sections 2.18(b) or (c)) in respect of principal or interest in respect of the Tranche A Term 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 pro rata according to the respective amounts then due and owing to the Lenders. The application of any prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate Loans and, second, to LIBO Rate Loans.
(b) Each payment (including each prepayment) of the Tranche A Term Loans outstanding under the Tranche A Term Loan Facility shall be allocated among the Tranche A Term Loan Lenders holding such Tranche A Term Loans pro rata based on the principal amount of such Tranche A Term Loans held by such Tranche A Term Loan Lenders, and shall be applied to reduce the then remaining installments of such Tranche A Term Loans pro rata based upon the then remaining installments thereof. Amounts prepaid on account of the Tranche A Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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 Letters of Credit.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans under such Facility and, second, to LIBO Rate Loans under such Facility. Each payment of the Loans (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars orPayment Office, in the case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign Applicable Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. If any payment hereunder (other than payments on the Eurodollar LIBO Rate 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 LIBO Rate Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made by the Borrower shall be required to make any payment under any Loan Document to or for hereunder that 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 Borrower will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest)the Administrative Agent or any Lender against the Borrower.
(h) The Administrative Agent reserves the right to apply against the repayment of any Obligations owing in any currency, any repayment and other amounts that may be applied (together in accordance with any accrued interest) by it from time other provisions of this Agreement to time to make any Revolving Credit Loans repay such Obligations, regardless of the currency in which such repayments and amounts were received or other payments as and when required to be made by such Defaulting Lender hereunderare held.
Appears in 1 contract
Samples: Credit Agreement (Tronox Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans and, second, to EurodollarTerm SOFR Loans. Each payment of the Loans (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such 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 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.Payment
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing of Revolving Credit Loans that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a payment of Revolving Credit Lender shall not make a Revolving Credit Loan required Loans due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow reliance upon such assumption, make available to the Revolving Credit 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 Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Revolving Credit Lender to which any amount which was made available pursuant to its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Chatham Lodging Trust)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the any Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the any Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective CMBS Bridge Loan Percentages, Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(including b) Subject to Section 2.18(d), each prepayment) by optional prepayment in respect of the Borrower on account of principal of and interest on any Revolving Credit Term Loans shall be allocated by among the Administrative Agent Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Revolving Credit Facilities, except in the case of the prepayment and replacement of the Term Loans then held under any Facility in the circumstances described in the last paragraph of Section 10.1. Subject to Section 2.18(d), each mandatory prepayment required by Section 2.12 to be applied to the Revolving Credit Lenders. Each payment (including each prepayment) by Tranche A Term Loans and the Borrower on account of principal of and interest on any Tranche B Term Loans shall be be, first, allocated by among the Administrative Agent Tranche A Term Loan Facility and the Tranche B Term Loan Facility pro rata according to then remaining installments thereof due during the calendar year of such mandatory prepayment and applied to such installments in direct order of maturity and, second, allocated among the Tranche A Term Loan Facility and the Tranche B Term Loan Facility pro rata according to the respective outstanding principal amounts of the Tranche A Term Loans then and the Tranche B Term Loans and applied to the installments thereof in direct order of maturity. Each payment on account of principal of the Term Loans outstanding under any Term Loan Facility 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 the such Term Loan Lenders. All payments (including prepayments) With respect to be made by any optional prepayment of the Borrower hereunderTranche A Term Loans and the Tranche B Term Loans, whether each payment on account of principal, interest, fees, Reimbursement Obligations or otherwise, principal of such Term Loans shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof applied to the Administrative Agent, for the installments thereof in a manner determined by Holdings. Amounts repaid or prepaid on account of the Lenders holding the relevant Term Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 not be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such 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 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrowerreborrowed.
(c) Each payment (including each prepayment) by any 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 of such Borrower then held by the Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything contained to the contrary in this AgreementSections 2.11, 2.12 or 2.18(b), so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to 100% of the portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any optional prepayment described in Section 2.11 or mandatory prepayment described in Section 2.12 that is allocated to Tranche B Term Loans (such amounts, respectively, the "Optional Prepayment Amount" and the "Mandatory Prepayment Amount"), at any time when Tranche A Term Loans remain outstanding, the relevant Borrower will:
(i) If at in the case of any time optional prepayment of the Tranche B Term Loans which such Borrower wishes to make, not later than 10 Business Days prior to the date on which such Borrower wishes to make such optional 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 Revolving Credit Lender shall not make notice (each, a Revolving Credit Loan "Prepayment Option Notice") as described below; and
(ii) in the case of any mandatory prepayment required to be made by it hereunder pursuant to Section 2.12, on the date specified in Section 2.12 for such prepayment, (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to A) give the Administrative Agent and the 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 Borrower, telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and any such substitute Revolving Credit provide to each Tranche B Term Loan Lender shall execute a Prepayment Option Notice as described below 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.
(iiB) 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 deposit 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 determinethe Mandatory Prepayment Amount.
(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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Except as provided in Section 2.20, each borrowing of Revolving Credit Dollar Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each made in accordance with the Pro Rata Share of the Lenders in effect on the date of such borrowing. Each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit Commitment Percentages Commitments of the Revolving Credit Lenders. Each Subject to Section 2.12(c), each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Dollar Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Dollar Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunderhereunder in Dollars, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Domestic Funding Office, in Dollars 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, and in immediately available funds. Payments received by the Administrative Agent after such time ; provided that reimbursement of drawings under Letters of Credit shall be deemed to have been received on the next Business Daymade as provided in Section 3.5. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received received, net of any amounts owing by such Lender pursuant to Section 9.7.
(b) Each borrowing of Foreign Currency Loans by the Borrower from the Foreign Currency Lenders hereunder shall be made, and any reduction of the Foreign Currency Commitments shall be allocated by the Administrative Agent, in accordance with the Pro Rata Share of the Foreign Currency Lenders in effect on the date of such borrowing. Subject to Section 2.12 (c), each payment (including each prepayment) by the Borrower on account of principal of and interest on any Foreign Currency Loans shall be made pro rata according to the respective outstanding principal amounts of the Foreign Currency Loans then held by the Foreign Currency Lenders. All payments (including prepayments) to be made by the Borrower hereunder in respect of Foreign Currency Loans, 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 Local Time on the end due date thereof to the Administrative Agent, for the account of the Foreign Currency Lenders, at the Applicable Foreign Currency Funding Office for the relevant Foreign Currency, in the currency of such Business Day Foreign Currency Loan and otherwise the in immediately available funds. The Administrative Agent shall distribute such payment payments to each Foreign Currency Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lenders on Foreign Currency Lender pursuant to Section 9.7.
(c) After any Conversion Date, all payments in respect of the next succeeding Business Day. Obligations hereunder (including any payments pursuant to Section 6.5 of the Guarantee and Collateral Agreement) shall be made pro rata in accordance with the Aggregate Exposure of each Lender.
(d) 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 of such payment thereof 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.
(be) Notwithstanding the foregoing, payments and reductions in Commitments and Foreign Currency Commitments may be made on a non pro rata basis to the extent required or permitted pursuant to Sections 2.17, 2.18, 2.19 and 2.20.
(f) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing of Dollar Loans that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing of Dollar Loans is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderLoans, on demand, from the Borrower. Nothing in this Section 2.12(f) shall be deemed to limit the rights of the Borrower against such Lender.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in writing by any Foreign Currency Lender prior to a borrowing of Foreign Currency 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 Foreign Currency 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 Foreign Currency Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Eurocurrency Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Foreign Currency Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Foreign Currency Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Foreign Currency Lender’s share of such borrowing of Foreign Currency Loans is not made available to the Administrative Agent by such Foreign Currency Lender within three 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 Eurocurrency Loans, on demand, from the Borrower. Nothing in this Agreement:Section 2.12(g) shall be deemed to limit the rights of the Borrower against such Foreign Currency Lender.
(h) 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 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 (in the case of any amounts made available in Dollars) or the daily average Eurocurrency Rate (in the case of any amounts made available in any currency other than Dollars). Nothing in this Section 2.12(h) shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(i) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lenderpursuant to Section 2.2, a “Defaulting Lender”2.12(f), the Borrower shall have the right to seek one 2.12(g), 2.12(h), 2.14(e), 2.20, 2.21, 3.4 or more Persons reasonably satisfactory to 9.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received hereunder by 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 Lender for 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 benefit of the Administrative Agent or the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower Borrowers on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche A Term Loan Percentages, Incremental Term Loan Percentages, USD Revolving Credit Commitment Percentages or Multicurrency Revolving Credit Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Parent Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 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 prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Incremental 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.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on any Revolving Credit Loans under any Revolving Credit Facility shall be made pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans under such Revolving Credit Facility then held by the Revolving Credit Lenders under such Revolving Credit Facility.
(d) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars (or, in the case of L/C Obligations any payment of principal or interest on any Multicurrency Revolving Credit Loans denominated in any Designated Foreign an Optional Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign the applicable Optional Currency, ) and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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, 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 Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 respective 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 at a rate equal to the daily average 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 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 subsection Section 2.18(e) shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderunder the relevant Facility, on demand, from the applicable Borrower, and, if so recovered, such amount shall no longer be deemed outstanding hereunder.
(f) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment being made hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that 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 such Borrower within three Business Days of such 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.
(c) Notwithstanding anything contained in this Agreement:
(ig) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.18(e), 2.18(f), 2.20(g), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 Lender for 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 benefit of the Administrative Agent, to be (to the extent permitted by applicable law and to Swingline Lender or the extent not utilized by the Administrative Agent 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 Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (CONMED Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madeFunding Parties hereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments payable hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments (except as provided in Section 3A.9) of the Revolving Credit Lenders Funding Parties shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Percentages, Incremental Facility Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit Lendersrelevant Funding Parties. Each mandatory prepayment in respect of principal or interest in respect of the Term Loans and the Incremental Facility Term Loans (other than a mandatory prepayment under Section 2.13(d)) shall be applied to the amounts of such obligations owing to the Term Funding Parties and the Incremental Facility Term Loans pro rata according to the respective amounts then due and owing to such Funding Parties. Each scheduled payment and optional prepayment in respect of principal or interest in respect of the Term Loans shall be applied to the amounts of such obligations owing to the Term Funding Parties pro rata according to the respective amounts then due and owing to such Term Funding Parties. Each scheduled payment and optional prepayment in respect of principal or interest in respect of any Series of Incremental Facility Term Loans shall be applied to the amounts of such obligations owing to the Incremental Facility Term Funding Parties of such Series pro rata according to the respective amounts then due and owing to such Incremental Facility Term Funding Parties.
(b) Each optional prepayment of the Term Loans and/or the Incremental Facility Term Loans shall be applied to the installments thereof as specified by the Borrower. Each mandatory prepayment by the Borrower on account of principal of and interest on the Term Loans and/or the Incremental Facility Term Loans shall be applied first, to any installments coming due within 24 months of the date of such prepayment in direct order of maturity and, second, ratably to the respective remaining installments thereof. Amounts repaid or prepaid on account of the Term Loans and the Incremental Facility Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan LendersRevolving Funding Parties. Each payment in respect of Reimbursement Obligations in respect of any Tranche A Letter of Credit shall be made to the Tranche A Issuing Lender that issued such Tranche A Letter of Credit.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, Agent at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 received by it for the account of any other Person to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the appropriate recipient promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender Funding Party prior to a borrowing that such Revolving Credit Lender Funding Party will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit Lender Funding Party 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 Funding Party shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 Revolving Credit Lender Funding Party makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Revolving Credit Lender Funding Party with respect to any amounts owing under this subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit LenderFunding Party’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender Funding Party within three Business Days of after such Borrowing Date, the Administrative Agent shall notify give notice of such fact to 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 Loans hereunderunder 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 Funding Party.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow reliance upon such assumption, make available to the Funding Parties their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Funding Party to which any amount which was made available pursuant to its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderFunding Party against the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages, L/C Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Except as otherwise provided herein, 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 (whether 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 then outstanding Term Loans on a pro rata basis regardless of Type. 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 any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off condition or counterclaim ordeduction for any counterclaim, except as permitted under subsection 4.11defense, other deduction recoupment or setoff and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received. Any payment received prior to the end of such Business Day and otherwise by the Administrative Agent after 10:00 A.M. shall distribute such payment to such Lenders be deemed received on the next succeeding Business DayDay and any applicable interest or fee shall continue to accrue. 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 of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a the date of any borrowing that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 AgentAgent on such date in accordance with Section 2, 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 in fact made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Revolving Credit Lender shall and the Borrower severally agree to pay to the Administrative Agent, on demand, such corresponding amount with interest thereon 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 daily average greater of (A) the Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent. A certificate of and (B) a rate determined by the Administrative Agent submitted to any Revolving Credit Lender in accordance with respect to any amounts owing under this subsection shall be conclusive banking industry rules on interbank compensation, and (ii) in the absence case of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not a payment to be made available to by the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing DateBorrower, 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower is making such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders 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 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 Administrative Agent in accordance with banking industry rules on interbank 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 Agreement: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 a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made insufficient funds are received by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory 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 Borrower parties entitled thereto in accordance with the amounts of interest and fees then due to each become a substitute Revolving Credit 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 and assume all shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or part 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 Credit Commitment Percentage or L/C Percentage, as applicable, of such Defaulting Lender. In payment on account of the Loans or participations obtained by all of the Lenders, such event, the Borrower, Lender shall forthwith advise the Administrative Agent and any of the receipt of such substitute Revolving Credit Lender shall execute and deliverpayment, and within five (5) Business Days of such Defaulting Lender shall thereupon be deemed to have executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution.
receipt purchase (iifor cash at face value) In determining from the Required 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 that at so purchasing a participation from another Lender pursuant to this Section 2.18(k) may exercise all its rights of payment (including the time is a Defaulting 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 Loans and Revolving Credit Commitment of such Defaulting Lenderlike referred to in this Section 2.18(k) 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 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 under any Loan Document made by or on behalf of the Borrower pursuant to or for and in accordance with the account express terms of this Agreement (including the application of funds arising from the existence 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)) the application of Cash Collateral provided for in Section 3.10, or (iii) above; any payment obtained by a Lender as consideration for the assignment of or (v) sale of a participation in any Defaulting Lender shall be generally unable toof its Loans or sub-participations in any L/C Exposure to any assignee or participant, or shall admit in writing its general inability to, pay its debts as they become due; other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall be required to pay any amount under any apply). The Borrower consents on behalf of itself and each other 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 Party to the Administrative Agentforegoing and agrees, to be (to the extent permitted by it may effectively do so under applicable law and law, that any Lender acquiring a participation pursuant to the extent not utilized by 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 satisfy obligations 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 Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of interest), Obligations constituting overdue interest and applied (together with any accrued interest) by it fees and Swingline Loans from time to time due and payable to make itself, any Revolving Credit 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 or other payments as and when required to be made by such Defaulting Lender hereunderwill 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 of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each payment of the Loans (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.2:00 pm, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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 satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent. Notwithstanding the foregoing, if the Administrative Agent in escrow receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in 8.1(f), or otherwise) (including the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Revolving Credit Lender or L/C Participant), and applied 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) (together with 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 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor the Defaulted Amount.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the each Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the each Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Original Term Percentages, New Term Percentages, Incremental Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the each Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Original Term Loans, New Term Loans and Incremental Term Loans of such Borrower then held by the Term Lenders 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 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, MMM may request, and the Administrative Agent may consent in its discretion, that such prepayment not be 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 Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 relevant 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the relevant Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by a Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it such Borrower hereunder (any that such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 will not 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 to satisfy obligations of the Defaulting Lender owing to it) held by may assume that such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest)the Administrative Agent or any Lender against either Borrower.
(g) The Administrative Agent may elect, in its sole discretion, to reallocate Original Term Loans and applied (together with any accrued interest) by it from time to time to make any Revolving Credit New Term Loans or other payments as and when required to be made by such Defaulting Lender hereunderbetween the Lenders for administrative purposes.
Appears in 1 contract
Samples: Credit Agreement (Aveta Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower Borrowers on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche A Term Loan Percentages, Incremental Term Loan Percentages, USD Revolving Credit Commitment Percentages or Multicurrency Revolving Credit Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Parent Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 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 prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Incremental 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.
(c) Each payment (including each prepayment) by any Borrower on account of principal of and interest on any Revolving Credit Loans under any Revolving Credit Facility shall be made pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans under such Revolving Credit Facility then held by the Revolving Credit Lenders under such Revolving Credit Facility.
(d) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars (or, in the case of L/C Obligations any payment of principal or interest on any Multicurrency Revolving Credit Loans denominated in any Designated Foreign an Optional Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign the applicable Optional Currency, ) and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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, 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 Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit 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 respective 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 at a rate equal to the daily average 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 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 subsection Section 2.18(e) shall be conclusive in the absence of manifest error. If such Revolving Credit LenderXxxxxx’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderunder the relevant Facility, on demand, from the applicable Borrower, and, if so recovered, such amount shall no longer be deemed outstanding hereunder.
(f) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment being made hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that 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 such Borrower within three Business Days of such 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.
(c) Notwithstanding anything contained in this Agreement:
(ig) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.18(e), 2.18(f), 2.20(g), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 Lender for 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 benefit of the Administrative Agent, to be (to the extent permitted by applicable law and to Swingline Lender or the extent not utilized by the Administrative Agent 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 Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (CONMED Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche B Term Percentages, Tranche C Term Percentages, Tranche D Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Except for payments made pursuant to Section 2.7, 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 2.17(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) [RESERVED].
(d) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata to the Revolving Lenders according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower to the Tranche D LC Lenders on account of principal of the Tranche D LC Reimbursement Amount and interest on any Term Loans thereon and payments of interest or earnings in respect of the Tranche D Credit-Linked Deposit shall be allocated by the Administrative Agent made pro rata to the Tranche D LC Lenders according to the their respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Tranche D LC Percentages.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan 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 Letters of Credit.
(c) The application of any mandatory payment of Loans shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. The application of any optional prepayment of Loans pursuant to Section 2.9 shall be at the direction of the Borrower. Each payment of the Loans (except in the case of Swing Line Loans and 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 2:00 P.M., New York City time, on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise except that in no event shall the Administrative Agent shall be required to distribute such payment to such Lenders on the next succeeding Business Daypayments more frequently than one time in any week. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Anc Rental Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Company (or, in the case of Revolving Offshore Loans, any Subsidiary Borrower) from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower Company on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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 relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower Company on account of principal of and interest on any Revolving Credit Loans Loan shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans then held by Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower Company on account of principal of and interest on any Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans or Tranche E Term Loans shall be allocated by the Administrative Agent pro rata according to the their respective outstanding principal amounts of the Term Loans then held by the Term Loan LendersTranche A Commitment Percentages, Tranche B Commitment Percentages, Tranche C Commitment Percentages, Tranche D Commitment Percentages or Tranche E Commitment Percentages. All payments (including prepayments) to be made by the Company or any Subsidiary Borrower hereunderhereunder (other than payments on Fronted Offshore Loans as provided in subsection 6.9(c)) and under any Notes, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City Central time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2's Payment Office, in Dollars or, in the case of L/C Obligations payments of principal and interest on Offshore Currency Loans, in any Designated Foreign Currencythe currency in which the Loans are denominated, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 agrees to 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 prior pay to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders payments received on the next succeeding Business Daytheir behalf promptly after receipt. If any payment hereunder (other than payments on the Eurodollar Loans or Revolving Offshore Loans) becomes due and payable on a day other than a Business Banking Day, the maturity of such payment shall be extended to the next succeeding Business Banking 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 Revolving Offshore Loan becomes due and payable on a day other than a Business Banking Day, the maturity of such payment shall be extended to the next succeeding Business Banking 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 Banking Day.
(b) . 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 Revolving Credit Commitment Percentage portion 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, Agent and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Company (or, in respect the case of such borrowing Revolving Offshore Loans, the relevant Subsidiary 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 Revolving Credit Lender shall pay to the Administrative Agent on demand (i) in the case of Revolving Offshore Loans, such amount with interest thereon at a rate equal to the daily average cost of funding such amount (as determined by the Administrative Agent, on demand) for the period until such Lender makes such amount immediately available to the Administrative Agent or (ii) otherwise, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent, in each case with a customary administrative fee with respect thereto. A certificate of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's portion of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Banking Days 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 equal to the higher of (i) the rate specified in the second sentence of this paragraph and (ii) the rate applicable to ABR Base Rate Loans hereunder, on demand, from the Company (or, in the case of Revolving Offshore Loans, the relevant Subsidiary Borrower.
). All payments (cincluding prepayments) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it a Subsidiary Borrower hereunder (any such in respect of Fronted Offshore Loans, on account of principal and interest thereon, shall be made without set offer counterclaim and shall be made prior to 11:00 A.M., local time, on the due date thereof to the relevant Fronting Lender, at the Fronting Lender's Payment Office in the currency in which such Loans are denominated and in immediately available funds in such currency. If any payment of principal or interest of a “Defaulting Lender”)Fronted Offshore Loan becomes due and payable on a day other than a Banking Day, the Borrower such payment shall have the right to seek one or more Persons reasonably satisfactory be extended to the Administrative Agent and the 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 eventnext succeeding Banking Day, 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) Ifand, with respect to any Defaulting Lenderpayments of principal, 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 interest thereon shall be commenced against payable at the then applicable rate during 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderextension.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/)
Pro Rata Treatment and Payments. (a) Each borrowing Borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madeLenders, each payment by the Borrower on account of any commitment fee in respect Bond Letter of the Revolving Credit Commitments hereunder Fee, Term VP Letters of Credit Fee, Debt Service Reserve Letter of Credit Fee or Debt Service Reserve Letter of Credit Commitment Fee shall be 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, made pro rata according to the relevant Revolving Credit respective Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of any principal of and interest on any Revolving Credit the Loans and each payment in respect of Term VP Reimbursement Obligations shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including thereof owed to 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 Term Loans then held by the Term Loan LendersLender. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, feesthe Bond Letter of Credit Fee, Reimbursement Obligations or otherwisethe Debt Service Reserve Letter of Credit Fee, the Debt Service Reserve Letter of Credit Commitment Fee and the Term VP Letters of Credit Fee, shall be made without set-set off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beto which such payments are owed, at the Administrative Agent’s 's office specified set forth in subsection 13.2, Schedule 1 in Dollars or, in lawful money of the case United States of L/C Obligations in any Designated Foreign Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, America and in immediately available funds. Payments received All payments on account of any Bond Fronting Fee, Debt Service Reserve Fronting Fee, Term VP Fronting Fee or Service Fee shall be made without set off or counterclaim to the Issuing Bank at its office set forth in Schedule 1 in lawful money of the United States of America and in immediately available funds. All payments on account of the Administration Fee or the up-front fee payable to the Agent shall be made without set off or counterclaim to the Agent at its office set forth in Schedule 1 in lawful money of the United States of America and in immediately available funds. All deposits with the Agent or the Security Agent of Reimbursement Cash Collateral or other amounts which are required pursuant to this Agreement shall be made by the Administrative Agent after such time shall be deemed to have been received on Borrower without set off or counterclaim in lawful money of the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, United States of America and in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayimmediately available funds. 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 Working Day, the maturity of such payment thereof shall be extended to the next succeeding Business Working 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 Working Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during any 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Samples: Reimbursement and Loan Agreement (Cogentrix Energy Inc)
Pro Rata Treatment and Payments. (a) i. Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be, of the Revolving Credit Lenders relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans or New Term Loans and each payment in respect of fees payable hereunder shall be allocated by applied to the Administrative Agentamounts of such obligations owing to the Term Lenders or New Term Lenders, in each caseas applicable, pro rata according to the relevant Revolving Credit Commitment Percentages respective amounts then due and owing to such Lenders, other than payments pursuant to Section 2.11(b) or 2.24.
ii. Each mandatory prepayment of the Revolving Credit LendersTerm Loans shall be allocated between each 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 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 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 applied to the re maining installments thereof as specified by the Borrower (except for prepayments pursuant to Section 2.11(b) or Section 2.24) and each mandatory prepayment of the Term Loans or New Term Loans shall be allocated 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 direct order of maturity. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.
iii. Each payment (including each prepaymentprepayments) to be made by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepaymentprepayments) to be made by the Borrower on account of principal of and interest on any Term the New Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term New Revolving Loans then held by the Term Loan 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.
iv. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff, deduction or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 CurrencyFunding Office, in immediately available funds. Payments Any payment received by the Administrative Agent after such 2:00 P.M., New York City time shall may be deemed to have been considered received on the next Business DayDay in the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(b) v. 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 Revolving Credit Commitment Percentage share 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, Agent on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive presumptively correct in the absence of manifest demonstrable error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Borrowing Date, the Administrative Agent shall notify give notice of such fact to 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 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 Loans hereunderunder 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.
(c) Notwithstanding anything contained vi. Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
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Pro Rata Treatment and Payments. (a) Each With respect to any particular Facility, each borrowing of Revolving Credit Loans by the Borrower and any Subsidiary Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment facility fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit any Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages, Initial Term Percentages or Incremental Term Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 Subsidiary Borrower on account of principal of and interest on any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. The amount of each principal prepayment of Term Loans of any applicable Facility shall be applied to reduce the then remaining installments of such applicable Facility (with the payment at final maturity counting as the last installment), pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid or repaid on account of the Term Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower or any Subsidiary Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars and in immediately available funds (or, in the case of L/C Obligations principal or interest relating to Multicurrency Loans, prior to 11:00 A.M., London time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at its Funding Office, in any Designated Foreign Currency, such Designated the relevant Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 8.7. 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 of such payment thereof 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.
(bd) 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 Revolving Credit Commitment Percentage share 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 and any Subsidiary Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Revolving Borrowing Date therefortherefor (or, in the case of Term Loans, the Initial Term Loan Funding Date or the applicable Incremental Term Facility Closing Date), such Revolving Credit Lender shall pay to the Administrative Agent, on demand, (i) in the case of amounts denominated in Dollars, such amount with interest thereon, at a rate equal to the greater of (X) the Federal Funds Effective Rate and (Y) 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 equal determined by the Administrative Agent to be the daily average Federal Funds Effective Rate for the period cost to it of funding such amount 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Revolving Borrowing Date, Initial Term Loan Funding Date or 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 applicable Incremental Term Facility Closing Date, as applicable, 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 hereunderunder the relevant Facility, on demand, from the Borrower and any Subsidiary 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 Borrower and any Subsidiary Borrower. Nothing in this paragraph shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower and any Subsidiary Borrower may have 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 Borrower or relevant Subsidiary Borrower prior to the date of any payment due to be made by the Borrower or relevant Subsidiary Borrower hereunder that the Borrower or relevant Subsidiary Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or relevant 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 relevant Subsidiary Borrower within three 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, (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 Rate and (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate per annum determined by the 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 or any Lender against the Borrower or relevant Subsidiary Borrower.
(c) Notwithstanding anything contained in this Agreement:
(if) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.17(d), 2.17(e), 2.19(d) or more Persons reasonably satisfactory to Section 8.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 Lender for 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 benefit of the Administrative Agent or the Swingline 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 Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (Synopsys Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder, each assignment by LCPI of Loans to Lenders hereunder shall be madeon the Effective Date, each payment by the Borrower Borrowers on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) on account of principal of the Term Loans outstanding under any Term Loan Facility 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 a Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrowers after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 relevant 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing made available by the Administrative Agent to the relevant Borrower is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the BorrowerBorrowers.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrowers prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it the Borrowers hereunder (any such Lender, a “Defaulting Lender”), that the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 Borrowers will not 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 the Administrative Agent may assume that the 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrowers within three 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 Borrowers.
(h) Upon receipt by the Administrative Agent of payments on behalf of Lenders, the Administrative Agent shall promptly distribute such payments to satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderAgent.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by among the Administrative Agent Term Loan Lenders holding such Term Loans pro rata according based on the principal amount of such Term Loans held by such Term Loan Lenders. The amount of each principal prepayment of the Terms Loans shall be applied first, to the respective four immediately succeeding installments of such Term Loans and, second, to the remaining installments of such Term Loans pro rata based on the remaining outstanding principal amounts amount of such Revolving Credit installments. Amounts repaid or prepaid on account of the Term Loans then held by the Revolving Credit Lenders. may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan Revolving Credit 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 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 amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon, New York City time, on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each With respect to any particular Facility, each borrowing of Revolving Credit Loans by the Borrower and any Subsidiary Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment facility fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit any Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages, Initial Term Percentages or Incremental Term Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 Subsidiary Borrower on account of principal of and interest on any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. The amount of each principal prepayment of Term Loans of any applicable Facility shall be applied to reduce the then remaining installments of such applicable Facility (with the payment at final maturity counting as the last installment), pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid or repaid on account of the Term Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower or any Subsidiary Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars and in immediately available funds (or, in the case of L/C Obligations principal or interest relating to Multicurrency Loans, prior to 11:00 A.M., London time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at its Funding Office, in any Designated Foreign Currency, such Designated the relevant Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 8.7. 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 of such payment thereof 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.
(bd) 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 Revolving Credit Commitment Percentage share 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 and any Subsidiary Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Revolving Borrowing Date therefortherefor (or, in the case of Term Loans, the Third Amendment and Restatement Effectiveness Date or the applicable Incremental Term Facility Closing Date), such Revolving Credit Lender shall pay to the Administrative Agent, on demand, (i) in the case of amounts denominated in Dollars, such amount with interest thereon, at a rate equal to the greater of (X) the NYFRB Rate and (Y) 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 equal determined by the Administrative Agent to be the daily average Federal Funds Effective Rate for the period cost to it of funding such amount 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Revolving Borrowing Date, Third Amendment and Restatement Effectiveness Date or 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 applicable Incremental Term Facility Closing Date, as applicable, 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 hereunderunder the relevant Facility, on demand, from the Borrower and any Subsidiary 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 Borrower and any Subsidiary Borrower. Nothing in this paragraph shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower and any Subsidiary Borrower may have 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 Borrower or relevant Subsidiary Borrower prior to the date of any payment due to be made by the Borrower or relevant Subsidiary Borrower hereunder that the Borrower or relevant Subsidiary Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or relevant 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 relevant Subsidiary Borrower within three 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, (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum equal to the daily average NYFRB Rate and (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate per annum determined by the 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 or any Lender against the Borrower or relevant Subsidiary Borrower.
(c) Notwithstanding anything contained in this Agreement:
(if) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.17(d), 2.17(e), 2.19(d) or more Persons reasonably satisfactory to Section 8.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 Lender for 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 benefit of the Administrative Agent or the Swingline 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 Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (Synopsys Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower or the Co-Borrower from the Revolving Credit Lenders hereunder shall be made(other than with respect to any Foreign Currency Loan), each payment by the Borrower or the Co-Borrower on account of any commitment fee, any participation fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be allocated by or 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 Co-Borrower on account of principal of and interest on any the Term Loans shall be allocated by the Administrative Agent 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 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. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower or the Co-Borrower on account of principal of and interest on the Revolving Loans (other than the Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.
(d) With respect to any Borrowing of Foreign Currency Loans, the Foreign Currency Loans of each applicable Foreign Currency Lender (other than the Fronting Lender) shall be in an amount equal to its Revolving Percentage of such Borrowing, and the Foreign Currency Loan of the Fronting Lender shall be in an amount equal to the aggregate amount of such Borrowing less the amount of the Foreign Currency Loans being made by other applicable Foreign Currency Lenders and comprising part of such Borrowing. Each payment (including each prepayment) by the Borrower or the Co-Borrower on account of principal of and interest on the Foreign Currency Loans shall be made pro rata according to the respective outstanding principal amounts of the Foreign Currency Loans then held by the Foreign Currency Lenders.
(e) All payments (including prepayments) to be made by the Borrower or the Co-Borrower hereunder, whether on account of principal, interest, feesfees or otherwise (other than in respect of the principal or interest on, Reimbursement Obligations or otherwisethe fronting fee with respect to, the Foreign Currency Loans), shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding Lenders, at the Funding Office, in Dollars and in immediately available funds. All payments (including prepayments) to be made by the Borrower or the Co-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 Loans 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 Foreign Currency Lenders, at the office, and prior to the time for payment for the relevant Foreign Currency, set forth on the Administrative Schedule. The Administrative Agent or the L/C ParticipantsForeign Currency Agent, as applicable, shall distribute such payments to each relevant Lender or Fronting Lender, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 9.7. If any payment hereunder (other than payments on the Eurodollar Loans or Foreign Currency 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 Foreign Currency Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 or the Co-Borrower, as applicable, 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:writing by the Borrower or the Co-Borrower, as applicable, prior to the date of any payment due to be made by the Borrower or the Co-Borrower hereunder that the Borrower or the Co-Borrower, as applicable, will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or the Co-Borrower, as applicable, 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 Co-Borrower, as applicable, within three 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 or the Co-Borrower.
(ih) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.10, 2.17(e), 2.17(f), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent and the 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 eventmay, the Borrower, the Administrative Agent and in its discretion (notwithstanding 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 contrary provision of this subsection 4.8(c)(ivAgreement), shall include any Revolving Credit Lender (i) that has commenced apply any caseamounts thereafter received by the Administrative Agent, proceeding the Swingline Lender, the Fronting Lender 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 Issuing 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 Lender to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under such amount to the Administrative AgentSections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, to be (to the extent permitted by applicable law and to the extent not utilized by the Administrative Agent to satisfy application to, any future funding obligations of such Lender under any such Section, in the Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans or Acquisition Loans by the Borrower Company (or, in the case of Revolving Offshore Loans, any Subsidiary Borrower) from the Revolving Credit Lenders or Acquisition Loan Lenders, as the case may be, hereunder shall be made, each payment by the Borrower Company on account of any commitment fee in respect of the Revolving Credit Commitments or Acquisition Loan Commitments, as the case may be, hereunder shall be allocated by the Administrative Agent and any reduction of the Revolving Credit Commitments or Acquisition Loan Commitments, as the case may be, shall be allocated by the Administrative Agent, and any reduction of pro rata according to the Revolving Credit Commitments Commitment Percentages of the Revolving Credit Lenders or Acquisition Loan Commitment Percentages of the Acquisition Loan Lenders, as the case may be. Each payment (including each prepayment) by the Company on account of principal of and interest on any Revolving Loan shall be allocated by the Administrative Agent, in each case, pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower Company on account of principal of and interest on any Revolving Credit Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tender Loans or Acquisition Loans shall be allocated by the Administrative Agent pro rata according to the their 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 Term Loans then held by the Term Tranche A Commitment Percentages, Tranche B Commitment Percentages, Tranche C Commitment Percentages, Tender Loan LendersCommitment Percentages or Acquisition Loan Commitment Percentages. All payments (including prepayments) to be made by the Company or any Subsidiary Borrower hereunderhereunder (other than payments on Fronted Offshore Loans as provided in subsection 6.9(c)) and under any Notes, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City San Francisco time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2's Payment Office, in Dollars or, in the case of L/C Obligations payments of principal and interest on Offshore Currency Loans, in any Designated Foreign Currencythe currency in which the Loans are denominated, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Day. If any payment hereunder (other than payments on the Eurodollar Loans or Revolving Offshore Loans) becomes due and payable on a day other than a Business Banking Day, the maturity of such payment shall be extended to the next succeeding Business Banking 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 Revolving Offshore Loan becomes due and payable on a day other than a Business Banking Day, the maturity of such payment shall be extended to the next succeeding Business Banking 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 Banking Day.
(b) 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 Revolving Credit Commitment Percentage portion of such 53 46 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, Agent and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Company (or, in respect the case of such borrowing Revolving Offshore Loans, the relevant Subsidiary 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 Revolving Credit Lender shall pay to the Administrative Agent on demand (i) in the case of Revolving Offshore Loans, such amount with interest thereon at a rate equal to the daily average cost of funding such amount (as determined by the Administrative Agent, on demand) for the period until such Lender makes such amount immediately available to the Administrative Agent or (ii) otherwise, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent, in each case with a customary administrative fee with respect thereto. A certificate of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's portion of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Banking Days 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 equal to the higher of (i) the rate specified in the second sentence of this paragraph and (ii) the rate applicable to ABR Base Rate Loans hereunder, on demand, from the Company (or, in the case of Revolving Offshore Loans, the relevant Subsidiary Borrower).
(c) Notwithstanding anything contained in this Agreement:
All payments (iincluding prepayments) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it a Subsidiary Borrower hereunder (any such in respect of Fronted Offshore Loans, on account of principal and interest thereon, shall be made without set off or counterclaim and shall be made prior to 11:00 A.M., local time, on the due date thereof to the relevant Fronting Lender, at the Fronting Lender's Payment Office in the currency in which such Loans are denominated and in immediately available funds in such currency. If any payment of principal or interest of a “Defaulting Lender”)Fronted Offshore Loan becomes due and payable on a day other than a Banking Day, the Borrower such payment shall have the right to seek one or more Persons reasonably satisfactory be extended to the Administrative Agent and the 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 eventnext succeeding Banking Day, 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) Ifand, with respect to any Defaulting Lenderpayments of principal, 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 interest thereon shall be commenced against payable at the then applicable rate during 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderextension.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Kci New Technologies Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit respective Commitment Percentages of the Revolving Credit Lenders. Each Except during any period in which an Event of Default has occurred and is continuing, each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated 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 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 Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunderhereunder in respect of any Loan, whether on account of principal, interest, Reimbursement Obligations (whether in respect of Domestic L/Cs or Foreign L/Cs), fees, Reimbursement Obligations expenses or otherwise, shall be made without set-set off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may bewith respect to such Loans, at the Administrative Agent’s 's office specified in subsection 13.210.2, in Dollars 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, and 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 such Lenders; provided, 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such 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 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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) Ifthat, with respect to any Defaulting Lender, which for Reimbursement Obligations of the purposes of this subsection 4.8(c)(iv), shall include any Revolving Credit Borrower arising from the presentment to the Issuing 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 receiverdraft under a Foreign L/C, 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 Borrower may make payment 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 applicable Alternative Currency if such payment obligation is received by paying the Issuing Lender on the date such amount to draft is paid by the Administrative AgentIssuing Lender. At any time that an Event of Default has occurred and is continuing, to be all payments (to the extent permitted including prepayments) made by applicable law Borrower hereunder and to the extent not utilized any application by the Administrative Agent to satisfy obligations of the Defaulting Lender proceeds of any Collateral shall be applied in the following order:
(1) to the ratable payment of all amounts due and owing to it) held by the Administrative Agent in escrow Borrower pursuant to its standard terms (including as subsection 10.5 of this Agreement or subsection 10.5 of the Facility B Credit Agreement to the earning of interest)Agents and/or the Facility B Agents, and applied after payment in full thereof, to any other Lender or Facility B Lender; (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 Defaulting Lender hereunder.
Appears in 1 contract
Samples: Credit Agreement (Southern California Microwave Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit respective Commitment Percentages of the Revolving Credit Lenders. Each Except during any period in which an Event of Default has occurred and is continuing, each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated 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 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 Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunderhereunder in respect of any Loan, whether on account of principal, interest, Reimbursement Obligations (whether in respect of Domestic L/Cs or Foreign L/Cs), fees, Reimbursement Obligations expenses or otherwise, shall be made without set-set off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may bewith respect to such Loans, at the Administrative Agent’s 's office specified in subsection 13.210.2, in Dollars orand in immediately available funds; provided, that, with respect to any Reimbursement Obligations of the Borrower arising from the presentment to the Issuing Lender of a draft under a Foreign L/C, the Borrower may make payment in the case applicable Alternative Currency if such payment is received by the Issuing Lender on the date such draft is paid by the Issuing Lender. At any time that an Event of Default has occurred and is continuing, all payments (including prepayments) made by Borrower hereunder and any application by the Administrative Agent of the proceeds of any Collateral and/or payment under any Guarantee shall be applied in the following order:
(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 B Credit Agreement or subsection 10.5 of the Facility C Credit Agreement (if Facility C exists) to the Agents, the Facility B Agents and/or the Facility C Agents (if Facility C exists), and after payment in full thereof, to any other Lender, Facility B Lender or Facility C Lender (if Facility C exists); (2) to the ratable payment of all interest, fees and commissions due and owing under this Agreement, the Facility B Credit Agreement or the Facility C Credit Agreement (if Facility C exists) to the Agents, the Facility B Agents, the Facility C Agents (if Facility C exists), the Swing Line Lender, any Lender, any Facility B Lender or any Facility C Lender (if Facility C exists); (3) to the ratable payment (or cash collateralization) of the aggregate outstanding principal amount of Loans, Facility B Loans, Facility C Loans (if Facility C exists) and the aggregate L/C Obligations, Facility X X/C Obligations and the Facility C L/C Obligations (if Facility C exists); and (4) to the ratable payment of all other obligations of the Borrower to the Agents, the Facility B Agents, the Facility C Agents (if Facility C exists), the Swing Line Lender, any Lender, any Facility B Lender, or any Facility C Lender (if Facility C exists) under any Credit Document, Facility B Credit Document or Facility C Credit Document (if Facility C exists). 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 any Designated Foreign Currency, which 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 DayLender is a L/C Participant. The Administrative Agent, the Facility B Administrative Agent and the Facility C Administrative Agent (if Facility C exists) shall ratably distribute such payments to such the applicable Lenders, the Facility B Lenders and the Facility C Lenders (if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, Facility C exists) promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 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.
(b) 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 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 AgentAgent on such Borrowing Date, 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit 's Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at . The failure of any time a Revolving Credit Lender shall not to make a Revolving Credit any Loan required to be made by it shall not relieve any other Lender of its obligation hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 its 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 on 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 determineBorrowing Date.
(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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) on account of principal of the Term Loans shall be allocated among the Term Loan Lenders pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders, and shall be applied (other than in the case of installment payments made in accordance with Section 2.3) to the installments of such Term Loans first, to the four immediately succeeding quarterly installments and thereafter, ratably to the remaining installments in accordance with the then outstanding amounts thereof. Amounts prepaid or repaid 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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) Upon receipt by the Administrative Agent of payments on behalf of Lenders, the Administrative Agent shall promptly distribute such payments to satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderAgent.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowing from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower Company on account of any commitment facility fee hereunder and (except as provided in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and subsection 2.23(c)) any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit LendersLenders under the relevant Revolving Credit Facility. Each Term Borrowing from the Term Loan Lenders hereunder and (except as provided in subsection 2.23(c)) any reduction of the Term Commitments of the Term Loan Lenders shall be made pro rata according to the respective Term Commitments of the Term Loan Lenders under the relevant Term Loan Facility. Each payment (including each prepayment) by the any Borrower on account of principal of and interest on any the Revolving Credit Loans or Term Loans under any Facility shall be 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 made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans or Term Loans made to such Borrower then held by the Lenders under such Facility. Each payment by the Company on account of principal of or interest on the Swing Line Loans shall be made pro rata according to the respective outstanding principal amounts of the Swing Line Loans then held by the Term Loan Swing Line Lenders. Each payment by a Japanese Borrower on account of principal of or interest on the Yen Swing Line Loans shall be made pro rata according to the respective outstanding principal amounts of the Yen Swing Line Loans then held by the Yen Swing Line Lender.
(b) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and counterclaim. All payments (including prepayments) in respect of Loans in any Currency shall be made in such Currency and in immediately available funds at the Payment Office, and at or prior to 1:00 P.M., New York City time12:00 Noon (local time at the applicable Payment Office), on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 Daythereof. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bc) Unless the Administrative Agent (or applicable Sub-Agent) shall have been notified in writing by any Revolving Credit Lender prior to the deadline for funding a borrowing Borrowing that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage pro rata share of such borrowing Borrowing available to the Administrative Agent (or applicable Sub-Agent), the Administrative Agent (or applicable Sub-Agent) may assume that such Revolving Credit Lender is making such amount available to the Administrative Agent (or applicable Sub-Agent), and the Administrative Agent (or applicable Sub-Agent) may, in reliance upon such assumption, make available to the applicable Borrower in respect of such borrowing a corresponding amount. If such amount is not made available to the Administrative Agent (or applicable Sub-Agent) by the required time on the Borrowing Date borrowing date therefor, such Revolving Credit Lender shall pay to the Administrative Agent (or applicable Sub-Agent), on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent (or applicable Sub-Agent). A certificate of the Administrative Agent (or applicable Sub-Agent) submitted to any Revolving Credit Lender with respect to any amounts owing under this subsection 2.18 shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage pro rata share of such borrowing Borrowing is not made available to the Administrative Agent (or applicable Sub-Agent) by such Revolving Credit Lender within three Business Days of such Borrowing Dateborrowing date, the Administrative Agent (or applicable Sub-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 (such interest being in lieu of and not in addition to any interest otherwise payable pursuant to subsection 2.13) at the rate per annum applicable to ABR Loans hereunderFederal Funds Rate, on demand, from the applicable Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the applicable Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) 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. Each payment by the Borrower on account of principal of and interest on any Term Swing Line Loans shall be allocated by the Administrative Agent pro rata according made to the respective outstanding principal amounts Swing Line Lender (to be applied, if applicable, as provided in Section 2.4(d)).
(c) The application of any payment of Loans under the Facility (including optional and mandatory prepayments) shall be made, first, to Base Rate Loans under the Facility and, second, to Eurodollar Loans under the Facility. Each payment of the Term Loans then held (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the Term Loan Lenders. 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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 satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent. Notwithstanding the foregoing, if the Administrative Agent in escrow receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in Section 8(f), or otherwise) (including the amount of such payment, the “Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Revolving Credit Lender or L/C Participant), and applied 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) (together with the amount of such obligations in default, the “L/C Participation Defaulted Amount”), the Administrative Agent may withhold from the Payment Amount an amount up to the L/C Participation Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the L/C Participation Defaulted Amount or, if applicable, toward reimbursement of 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor the L/C Participation Defaulted Amount.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower or any Subsidiary Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders; provided that at the option of the Borrower, all or a portion of any optional prepayments of the Term Loans made in accordance with Section 2.10 may be applied to repay the Term Loans as directed by the Borrower. The amount of each such optional principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche B Term Loans as directed by the Borrower. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower or any Subsidiary 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.
(d) All payments (including prepayments) to be made by the Borrower or any Subsidiary Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars or, in the case of L/C Obligations or in any Designated Foreign Currency, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, other applicable currency and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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. Any obligation under this Agreement denominated in currency other than Dollars should be payable in such currency unless the obligor, the obligee and the Administrative Agent shall otherwise agree.
(be) 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 Revolving Credit Commitment Percentage share 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 or any Subsidiary 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 Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal up to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower or relevant Subsidiary Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower or relevant Subsidiary Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and such Subsidiary Borrower hereunder that the 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 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 Subsidiary 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower or such Subsidiary Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 relevant Subsidiary Borrower within three 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning of 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 Defaulting Lender hereunder.daily average Federal Funds
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative AgentFee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the applicable Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans under the Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans under the Facility, second, to Term SOFR Daily Floating Rate Loans under the Facility and third, to Term SOFR Loans under the Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans or Term SOFR Daily Floating Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, 12:00 Noon on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such LendersExcept as otherwise provided herein, if any such payment hereunder becomes due and payable, or the performance of any covenant, duty or obligation is received prior stated to 1:00 P.M., New York City timebe due or required, on a day other than a Business Day, in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment or performance shall be extended to such 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 Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit received notice from a Lender prior to a the proposed date of any borrowing of Term SOFR Loans (or, in the case of any borrowing of Base Rate Loans, prior to 12:00 noon on the date of such borrowing) that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage of such borrowing available to the Administrative AgentAgent such Xxxxxx’s share of such borrowing, the Administrative Agent may assume that such Revolving Credit Lender is making has made such amount share available to on such date in accordance with Section 2.2 (or, in the Administrative Agentcase of a borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the Administrative Agent time required by Section 2.2) and may, in reliance upon such assumption, make available to the Borrower in respect of such borrowing a corresponding amount. If In such event, if a Lender has not in fact made its share of the applicable borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(f) 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. With respect to any payment that the Administrative Agent makes for the account of the Lenders or the 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 Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the 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 the 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(g) Subject to Section 2.21(a)(ii), 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.
(h) 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 Administrative Agent Borrower 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in because the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available conditions to the Administrative Agent by such Revolving Credit Lender within three Business Days applicable extension of such Borrowing Datecredit set forth in Section 5 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall notify the Borrower of the failure of return such Revolving Credit Lender funds (in like funds as received from 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 ABR Loans hereunderLender, on demand, from the Borrowerwithout interest.
(c) Notwithstanding anything contained in this Agreement:
(i) If at The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any time a Revolving Credit Lender to make any Loan or to fund any L/C Participation 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 not be responsible for the failure of any other Lender to so make a Revolving Credit its Loan required or to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 substitutionpurchase its L/C Participation.
(iij) 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 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 Revolving Credit Loan representation by such Defaulting any Lender made on that it has obtained or will obtain 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 funds for any such relief which shall not have been vacated, discharged, stayed Loan in any particular place 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereundermanner.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be mademade pro rata according to the respective Commitments of the Lenders. Subject to Section 2.4(b), each any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Commitments of the Lenders. Each payment by the Borrower on account of any commitment fee in with respect of the Revolving Credit Commitments hereunder to any period shall be 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, made pro rata according to the relevant Revolving Credit Commitment Percentages respective average daily Available Commitments of the Revolving Credit Lenders. Each Lenders for such period; provided, that the Borrower shall not be obligated to pay any commitment fee owed to a Lender with respect to any period during which such Lender became a Defaulting Lender and such Defaulting Lender’s Available Commitment shall not be included in the calculation of the commitment fees owed to the Lenders that are not Defaulting Lenders during such period, unless in either case such Lender remains a Performing Lender during such period.
(b) Subject to Section 2.5(d), each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts then Dollar Equivalent 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 Term Loans then held by the Term Loan Lenders. .
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 CurrencyFunding Office, in immediately available funds. Payments received by and prepayments of principal of and interest on Loans denominated in the Administrative Agent after such time Optional Currency shall be deemed to have been received on made in the next Business DayOptional Currency; payments and prepayments of all other amounts hereunder shall be made in the Base Currency. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bd) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing Borrowing Date that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing on such date available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit Lender is making has made such amount available to the Administrative AgentAgent on such Borrowing Date, and the Administrative Agent may, but shall not be so required to, 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 such Borrowing Date, and if the Borrowing Date thereforAdministrative Agent makes such corresponding amount available to the Borrower, then such Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If the Administrative Agent makes such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing available to the Borrower, and if such Lender’s share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three (3) Business Days of after 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 Loans hereunderLoans, on demand, from the Borrower.
(c) Notwithstanding anything . The failure of any Lender to make any Loan on any Borrowing Date shall not relieve any other Lender of its obligation hereunder to make a Loan on such Borrowing Date pursuant to the provisions contained in this Agreement:
(i) If at any time a Revolving Credit herein, but no Lender shall not be responsible for the failure of any other Lender to make a Revolving Credit the Loan required to be made by it hereunder such other Lender on any Borrowing Date.
(any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to e) Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment due to 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 made by the Borrower shall be required to make any payment under any Loan Document to or for hereunder that 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 Borrower will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each optional prepayment of the Term Loans shall be applied as specified by the Borrower. Each mandatory 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 2.10(e)). Each mandatory prepayment by the Borrower shall be applied pro rata to the Term Loans based upon the respective then remaining principal amounts thereof and shall be applied, first, to any installments coming due within 12 months of the date of such prepayment and, second, 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 any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving 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.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Borrowing Date, the Administrative Agent shall notify give notice of such fact to 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Empi Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative AgentFee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the applicable Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans under the Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans under the Facility, second, to Daily Floating Eurodollar Rate Loans under the Facility and third, to Eurodollar Loans under the Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans or Daily Floating Eurodollar Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, 12:00 Noon on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such LendersExcept as otherwise provided herein, 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Day. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable payable, or the performance of any covenant, duty or obligation is stated to be due or required, on a day other than a Business Day, the maturity of such payment or performance 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 of such payment thereof 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. CHAR1\1740645v10
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 satisfy obligations the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Defaulting Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender owing to itwhich 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) held the Federal Funds Rate and (ii) a rate determined by the Administrative Agent in escrow pursuant to its standard terms (including as accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the earning Administrative Agent. Nothing herein shall be deemed to limit the rights of interestthe Administrative Agent or any Lender against the Borrower.
(g) Subject to Section 2.21(a)(ii), and applied 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.
(together with h) If any accrued interest) by it from time Lender makes available to time to make the Administrative Agent funds for any Revolving Credit Loans or other payments as and when required Loan to be made by such Defaulting Lender hereunderas 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 are not satisfied or waived in accordance with the terms hereof, the CHAR1\1740645v10 Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(i) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or to fund any L/C Participation 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 or to purchase its L/C Participation.
(j) 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 (Northwestern Corp)
Pro Rata Treatment and Payments. (ai) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders in effect on the date of such borrowing.
(ii) 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 (other than the Term Loan Paydown) shall be applied in inverse order of maturity to reduce the then remaining installments of the Term Loans. The Term Loan Paydown shall be applied to the Term Loans on the date of payment to the remaining principal installments of the Term Loans in the direct order of maturity. Amounts prepaid on account of the Term Loans may not be reborrowed.
(iii) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan Revolving Lenders. .
(iv) Each payment by the Borrower on account of any commitment fee or letter of credit fee (other than the fronting fee) hereunder shall be allocated by the Administrative Agent among the Revolving 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 allocated by the Administrative Agent among the Lenders pro rata according to the Revolving Credit Commitment Percentages of the Lenders on the date of such reduction.
(vi) All payments (including prepayments) to be made by the Borrower in respect of Loans hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beentitled thereto, at the Administrative Agent’s office specified in subsection 13.211.2, in U.S. Dollars 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, and 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 such Lenders, if any such payment is received prior the Lenders entitled to 1:00 P.M., New York City time, on a Business Day, receive the same promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Day. received.
(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 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.
(b) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing Borrowing Date that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share 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 at a rate per annum equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing Date, the Administrative Agent Borrower shall notify the Borrower of the failure repay such Lender’s share of such Revolving Credit Lender to make borrowing (together with interest thereon from the date such amount was made available to the Administrative Agent and the Administrative Agent shall also be entitled to recover such amount with interest thereon Borrower) at the rate per annum applicable to ABR Prime Loans hereunder, on demand, hereunder to the Administrative Agent not later than three Business Days after receipt of written notice from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any Administrative Agent specifying such Lender’s share of such borrowing that was not made available to such Administrative Agent, a “Defaulting Lender”), and the Borrower shall have the right to seek one or more Persons reasonably satisfactory pursue any remedies against such Lender for its failure to make its portion of such borrowing available.
(c) Unless the Administrative Agent and shall have been notified in writing by the Borrower prior 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 date on which a payment 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 due from the Borrower shall be required to make any payment under any Loan Document to or for hereunder that 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 Borrower will not 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 available 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 the Borrower is making such amount available to satisfy obligations of the Defaulting Lender owing to it) held by Administrative Agent, and the Administrative Agent may, in escrow pursuant to its standard terms (including as reliance upon such assumption, make available to the earning applicable Lenders a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the due date therefor, each applicable Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate per annum equal to the daily average Federal Funds Effective Rate for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of interest), and applied (together the Administrative Agent submitted to any Lender with respect to any accrued interest) by it from time to time to make any Revolving Credit Loans or other payments as and when required to amounts owing under this subsection shall be made by such Defaulting Lender hereunderconclusive in the absence of manifest error.
Appears in 1 contract
Samples: Credit Agreement (Napco Security Technologies, Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the a Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the a Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative AgentFee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the applicable Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each payment (including each prepayment) by the a Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans under the Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated made, first, to Base Rate Loans under the Facility, second, to Term SOFR Daily Floating Rate Loans under the Facility and third, to Term SOFR Loans under the Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans or Term SOFR Daily Floating Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(d) All payments (including prepayments) to be made by the either Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, 12:00 Noon on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent a Borrower after such time 12:00 Noon on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such LendersExcept as otherwise provided herein, if any such payment hereunder becomes due and payable, or the performance of any covenant, duty or obligation is received prior stated to 1:00 P.M., New York City timebe due or required, on a day other than a Business Day, in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment or performance shall be extended to such 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 Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any borrowing of Term SOFR Loans (or, in the case of any borrowing of Base Rate Loans, prior to 12:00 noon on the date of such borrowing) that such Lender will not make available to the Administrative Agent such Xxxxxx’s share of such borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.2 (or, in the case of a borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.2) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agrees to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by a Borrower, the interest rate applicable to Base Rate Loans. If a Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to 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 a Borrower shall be without prejudice to any claim the applicable Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(f) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender either Xxxxxxxx prior to the date of any payment due to be made by a borrowing Borrower hereunder that such Revolving Credit Lender Borrower will not make the amount that would constitute its Revolving Credit Commitment Percentage of such borrowing available payment to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit Lender Borrower is making such amount available to the Administrative Agentpayment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower in respect Lenders their respective pro rata shares of such borrowing a corresponding amount. If With respect to any payment that the Administrative Agent makes for the account of the Lenders or the 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 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 the 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(g) Subject to Section 2.21(a)(ii), 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.
(h) 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 Administrative Agent applicable Borrower 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in because the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available conditions to the Administrative Agent by such Revolving Credit Lender within three Business Days applicable extension of such Borrowing Datecredit set forth in Section 5 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall notify the Borrower of the failure of return such Revolving Credit Lender funds (in like funds as received from 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 ABR Loans hereunderLender, on demand, from the Borrowerwithout interest.
(c) Notwithstanding anything contained in this Agreement:
(i) If at The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any time a Revolving Credit Lender to make any Loan or to fund any L/C Participation 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 not be responsible for the failure of any other Lender to so make a Revolving Credit its Loan required or to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 substitutionpurchase its L/C Participation.
(iij) 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 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 Revolving Credit Loan representation by such Defaulting any Lender made on that it has obtained or will obtain 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 funds for any such relief which shall not have been vacated, discharged, stayed Loan in any particular place 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereundermanner.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(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 (except that prepayments made pursuant to Section 2.10(f) shall be applied to installments of Term Loans in the inverse order of scheduled 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 2:00 P.M., New York City time, on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower Borrowers on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment in respect of principal or interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(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.
(c) Each payment (including each prepayment) by the Borrower Borrowers on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan Revolving Credit Lenders.
(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 shall be accompanied by accrued interest to the date of such payment on the amount paid.
(e) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 p.m. (noon), New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrowers after such time 2:00 p.m. (noon), New York City time, on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) Unless Amounts to be applied, (1) after the Administrative Agent shall have been notified occurrence and during the continuance of an Event of Default specified in writing by any Revolving Credit Lender prior Section 7(a) or Section 7(f), (2) after the occurrence and during the continuance of an Event of Default specified in Section 7(i) with respect to a borrowing that such Revolving Credit Lender will material portion of the Collateral or (3) after the occurrence and during the continuance of any other Event of Default not make the amount that would constitute its 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, specified in subclause (1) or (2) above and the Administrative Agent mayacceleration of the Obligations pursuant to Section 7, in reliance upon such assumption, make available to the Borrower all payments 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 at a rate equal to the daily average Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent. A certificate Obligations and all proceeds of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this subsection Collateral shall be conclusive applied against the Obligations in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreementfollowing order:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required first, to be made by it hereunder (any such Lenderpay incurred and unpaid fees, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to expenses and indemnities of the Administrative Agent under the Loan Documents;
(ii) second, to pay incurred and unpaid fees, expenses and indemnities of the Borrower Lenders under the Loan Documents;
(iii) third, to each become a substitute Revolving Credit Lender pay interest then due and assume all or part payable in respect 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 (Loans 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.Term Loans;
(iv) Iffourth, to the prepayment of the Revolving Credit Loans then outstanding (with a corresponding permanent reduction of the Revolving Credit Commitments) and to the prepayment of the Term Loans then outstanding (with a corresponding permanent reduction of the Term Loan Commitments); and
(v) fifth, to pay all other Obligations. If sufficient funds are not available to fund all payments to be made in respect of any of the Obligations described in any of the foregoing clauses (i) through (v), the available funds being applied with respect to any Defaulting such Obligation shall be allocated to the payment of such Obligations ratably, based on the proportion of the Administrative Agent’s, Lender, which for ’s or other Secured Party’s interest in the purposes aggregate outstanding Obligations described in such clause. The order of this subsection 4.8(c)(iv), shall include any Revolving Credit Lender priority set forth in clauses (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 through (v) of this Section 2.16(f) may at 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 time and to the extent not utilized by the Administrative Agent to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of interest), and applied (together with any accrued interest) by it from time to time be changed by the agreement of the Lenders in each Facility and the Administrative Agent without necessity of notice to make or consent of or approval by the Borrowers, any Revolving Credit Loans other Loan Party, any Secured Party that is not a Lender or any other payments as and when required to be made by such Defaulting Lender hereunderPerson.
Appears in 1 contract
Samples: Credit Agreement (MVC Capital, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower Company on account of any commitment facility fee in respect of the Revolving Credit Commitments or utilization fee hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Banks shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Banks. Each disbursement of Committed Rate Loans in any Currency shall be made by the Banks holding Revolving Credit LendersCommitments in such Currency pro rata according to the respective Revolving Borrowing Percentages of such Banks. Each disbursement of Term Loans shall be made by the Banks holding Term Commitments pro rata according to the respective Term Percentages of such Banks. Each payment (including each prepayment) by the any Borrower on account of principal of and interest on any Revolving Credit Loans in any Currency shall be allocated by the Administrative Agent made 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 Term Loans of such Currency of such Borrower then held by due and owing to the Term Loan LendersBanks. All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-set off or counterclaim orcounterclaim. All payments in respect of Term Loans, except as permitted under subsection 4.11, other deduction and Committed Rate Loans or Letters of Credit in any Currency shall be made in such Currency and in immediately available funds at the Payment Office, and at or prior to 1:00 P.M.the Payment Time, New York City timefor such Type of Loans and such Currency, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 Daythereof. The Administrative Agent shall distribute such to the Banks any payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, by the Administrative Agent promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 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.
(b) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender Bank prior to a borrowing Borrowing Date in respect of Term Loan or Committed Rate Loans that such Revolving Credit Lender Bank will not make the amount that would constitute its Revolving Credit Commitment Borrowing Percentage or Term Percentage, as applicable, of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit Lender Bank 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 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 Bank shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to (A) in the case of any such Term Loans or Committed Rate Loans denominated in Dollars, the daily average Federal Funds Effective funds rate, as quoted by the Administrative Agent, or (B) in the case of any Committed Rate Loans denominated in an Available Foreign Currency, the rate customary in such Currency for settlement of similar inter-bank obligations, as quoted by the Administrative Agent, in each case for the period until such Revolving Credit Lender Bank makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Revolving Credit Lender Bank with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Revolving Credit LenderBank’s Revolving Credit Commitment Borrowing Percentage or Term Percentage, as applicable, of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender Bank within three Business Days 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 Swing Line Loans in such Currency hereunder, on demand, from the relevant Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the any Borrower from the Revolving Credit applicable Lenders hereunder shall be madehereunder, each payment by the any Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche A Term Percentages, Tranche B Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the any Borrower on account of principal of and interest on any Revolving Credit the Tranche A Term Loans, Supplemental Term Loans shall be allocated by or 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 Tranche B Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Tranche A Term Loans, Supplemental Term Loans or Tranche B Term Loans, as the case may be, then held by the applicable Term Loan Lenders or Supplemental Term Lenders. Amounts prepaid on account of the Term Loans or Supplemental 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 shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans of such Borrower then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, are absolute and unconditional, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction or rescission or defense for any reason and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 . In the case of any extension of any payment of principal pursuant to payments of principalthe preceding two sentences, 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 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.
(be) 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 Revolving Credit Commitment Percentage share 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 applicable 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the relevant Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by ASC prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it a Borrower hereunder (any that such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 will not 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 to satisfy obligations of the Defaulting Lender owing to it) held by may assume that such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or any accrued interest) by it from time to time to make Lender against any Revolving Credit Loans or other payments as and when required to be made by such Defaulting Lender hereunderBorrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Tranche B Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) on account of principal of the Tranche B Term Loans shall be allocated among the Tranche B Term Loan Lenders pro rata based on the respective outstanding principal amounts of the Tranche B Term Loans then held by the 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 repaid or 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 any the Revolving Credit Loans shall be allocated by among the Administrative Agent Revolving Credit Lenders pro rata according to based on the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interestinterest (including the Alternative Rate), fees, Reimbursement Obligations fees or otherwise, shall be made without set-off condition or deduction for any defense, recoupment, setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 2:00 p.m., New York City time, on any Business Day shall be deemed to have been received on the next following Business DayDay and any applicable interest or fee shall continue to accrue. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment by wire transfer to such Lenders on the next succeeding Business DayLender's Lending Office. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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, but shall not be required to, in reliance upon such assumption, make available to the Borrower in respect of such borrowing a corresponding amount. If and to the extent such amount is not made available to the Administrative Agent in immediately available funds 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 at a rate equal to the daily average Federal Funds Effective Rate for the period commencing on the Borrowing Date 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower. Nothing herein shall limit the rights of the Borrower against any such defaulting Lender.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower or Alternative Rate Lender prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and Alternative Rate Lender hereunder that the Borrower to each become a substitute Revolving Credit or Alternative Rate 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 will not 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 the Administrative Agent may assume that the Borrower or Alternative Rate Lender is making such payment, and the Administrative Agent may, but shall not be (required to, in reliance upon such assumption, make available to the extent permitted by applicable law Lenders their respective pro rata shares of a corresponding amount. If and to the extent such payment is not utilized made to the Administrative Agent by the Borrower or Alternative Rate Lender in immediately available funds, 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 in respect of each day from and including the date such amount was made available by the Administrative Agent to satisfy obligations such Lender 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 Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as or any Lender against the Borrower or Alternative Rate Lender. A certificate of the Administrative Agent submitted to the earning Borrower or Alternative Rate Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of interest), and applied manifest error.
(together with h) If any accrued interest) by it from time Lender makes available to time to make the Administrative Agent funds for any Revolving Credit Loans or other payments as and when required Loan to be made by such Defaulting Lender hereunderas 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 credit extension set forth in Section 5 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(i) The obligations of the Lenders hereunder to make Loans and of the Revolving Lenders to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or to fund any such participation 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 or purchase its participation.
(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.
Appears in 1 contract
Samples: Credit Agreement (Perkinelmer Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans the Tranche A Term Loan and Tranche B Term Loan, as the case may be, shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit the Term Loans then held by the Revolving Credit Tranche A Term Lenders 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 2.11 shall be applied to reduce the Tranche A Term Loans ratably as 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 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 any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 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, 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 Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 daily average Federal Funds Effective greater of (i) the 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit LenderXxxxxx’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement: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 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 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.
(ig) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(c), the Borrower shall have the right 2.7(d), 2.17(e), 2.17(f), 3.4(a) or 9.7 (unless subject to seek one or more Persons reasonably satisfactory to a good faith dispute), then the Administrative Agent and may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received by the 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 eventAdministrative Agent, the Borrower, Swingline Lender or the Administrative Agent and any such substitute Revolving Credit Issuing 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 Lender under this Agreement to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under 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 to satisfy Sections until all such unsatisfied obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderare fully paid.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment respective Term Loan Percentages of the Revolving Credit relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans outstanding shall be allocated by among the Administrative Agent Term Loan Lenders holding such Term Loans pro rata according to based on the respective outstanding principal amounts amount of such Revolving Credit Term Loans then held by the Revolving Credit such Term Loan Lenders. Each payment (including each prepayment) by the Borrower Amounts prepaid 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 Term Loans then held may not be reborrowed.
(c) The application of any payment of Loans (including optional and mandatory prepayments) shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each payment of the Loans shall be accompanied by accrued interest to the Term Loan Lenders. 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing made available by the Administrative Agent to the Borrower is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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 satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderAgent.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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 made pro
(1) to the relevant Revolving Credit Commitment Percentages ratable payment of the Revolving Credit Lenders. Each payment (including each prepayment) all amounts due and owing by the Borrower on account pursuant to subsection 10.5 of principal this Agreement, subsection 10.5 of and interest on any Revolving the Facility B Credit Loans shall be allocated by Agreement or subsection 10.5 of the Administrative Agent pro rata according Facility C Credit Agreement to the respective Agents, the Facility B Agents and/or the Facility C Agents, and after payment in full thereof, to any other Lender, Facility B Lender or Facility C Lender; (2) to the ratable payment of all interest, fees and commissions due and owing under this Agreement, the Facility B Credit Agreement or the Facility C Credit Agreement to the Agents, the Facility B Agents, the Facility C Agents, the Swing Line Lender, any Lender, any Facility B Lender or any Facility C Lender; (3) to the ratable payment (or cash collateralization) of the aggregate outstanding principal amounts amount of such Revolving Credit Loans, Facility B Loans, Facility C Loans then held by and 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 Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the aggregate L/C ParticipantsObligations and Facility X X/C Obligations; and (4) to the ratable payment of all other obligations of the Borrower to the Agents, the Facility B Agents, the Facility C Agents, the Swing Line Lender, any Lender, any Facility B Lender, or any Facility C Lender under any Credit Document, Facility B 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 the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars or, in the case of cash collateral for L/C Obligations in any Designated Foreign Currency, which 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 DayLender is a L/C Participant. The Administrative Agent, the Facility B Administrative Agent and the Facility C Administrative Agent shall ratably distribute such payments to such the applicable Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Facility B Lenders and the Facility C Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 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.
(b) 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 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 AgentAgent on such Borrowing Date, 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit 's Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at . The failure of any time a Revolving Credit Lender shall not to make a Revolving Credit any Loan required to be made by it shall not relieve any other Lender of its obligation hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 its 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 on 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 determineBorrowing Date.
(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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Company (or, in the case of Revolving Offshore Loans, any Subsidiary Borrower) from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower Company on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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 relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower Company on account of principal of and interest on any Revolving Credit Loans Loan shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Revolving Credit Loans then held by Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower Company on account of principal of and interest on any Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or Tranche D Loans shall be allocated by the Administrative Agent pro rata according to the their respective outstanding principal amounts of the Term Loans then held by the Term Loan LendersTranche A Commitment Percentages, Tranche B Commitment Percentages, Tranche C Commitment Percentages or Tranche D Commitment Percentages. All payments (including prepayments) to be made by the Company or any Subsidiary Borrower hereunderhereunder (other than payments on Fronted Offshore Loans as provided in subsection 6.9(c)) and under any Notes, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City Central time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2's Payment Office, in Dollars or, in the case of L/C Obligations payments of principal and interest on Offshore Currency Loans, in any Designated Foreign Currencythe currency in which the Loans are denominated, such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 agrees to 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 prior pay to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders payments received on the next succeeding Business Daytheir behalf promptly after receipt. If any payment hereunder (other than payments on the Eurodollar Loans or Revolving Offshore Loans) becomes due and payable on a day other than a Business Banking Day, the maturity of such payment shall be extended to the next succeeding Business Banking 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 Revolving Offshore Loan becomes due and payable on a day other than a Business Banking Day, the maturity of such payment shall be extended to the next succeeding Business Banking 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 Banking Day.
(b) . 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 Revolving Credit Commitment Percentage portion 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, Agent and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Company (or, in respect the case of such borrowing Revolving Offshore Loans, the relevant Subsidiary 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 Revolving Credit Lender shall pay to the Administrative Agent on demand (i) in the case of Revolving Offshore Loans, such amount with interest thereon at a rate equal to the daily average cost of funding such amount (as determined by the Administrative Agent, on demand) for the period until such Lender makes such amount immediately available to the Administrative Agent or (ii) otherwise, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent, in each case with a customary administrative fee with respect thereto. A certificate of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's portion of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Banking Days 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 equal to the higher of (i) the rate specified in the second sentence of this paragraph and (ii) the rate applicable to ABR Base Rate Loans hereunder, on demand, from the Company (or, in the case of Revolving Offshore Loans, the relevant Subsidiary Borrower.
). All payments (cincluding prepayments) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it a Subsidiary Borrower hereunder (any such in respect of Fronted Offshore Loans, on account of principal and interest thereon, shall be made without set off or counterclaim and shall be made prior to 11:00 A.M., local time, on the due date thereof to the relevant Fronting Lender, at the Fronting Lender's Payment Office in the currency in which such Loans are denominated and in immediately available funds in such currency. If any payment of principal or interest of a “Defaulting Lender”)Fronted Offshore Loan becomes due and payable on a day other than a Banking Day, the Borrower such payment shall have the right to seek one or more Persons reasonably satisfactory be extended to the Administrative Agent and the 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 eventnext succeeding Banking Day, 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) Ifand, with respect to any Defaulting Lenderpayments of principal, 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 interest thereon shall be commenced against payable at the then applicable rate during 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderextension.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the respective Tranche A Term Percentages, US$ Revolving Percentages or Multicurrency Revolving Percentages, as the case may be, of the relevant Revolving Credit Commitment Percentages Lenders. Any reduction of the Revolving Credit Lenders. Commitments shall be applied ratably to the US$ Revolving Commitments and the Multicurrency Revolving Commitments.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Tranche A Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit the Tranche A Term Loans then held by the Revolving Credit Tranche A Term Lenders. The amount of each principal prepayment of the Tranche A Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans pro rata based upon the then remaining principal amounts thereof. Amounts prepaid on account of the Tranche A Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term the Revolving Loans under a particular Facility shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Lenders. Revolving Lenders under such Facility.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars or, in or the case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign relevant Alternative Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (or, in the case of Dollar-denominated Loans, if greater, the Federal Funds Effective Rate Rate) 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunder(or, in the case of Alternative Currency Loans, the relevant rate applicable thereto) under the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate (or, in the case of interestAlternative Currency Loans, the Cost of Funds Rate), and applied (together with . Nothing herein shall be deemed to limit the rights of the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the applicable Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Revolving Credit Lenders.
(c) The application of any payment of Loans under the Facility (including optional and mandatory prepayments) shall be made, first, to Base Rate Loans under the Facility, second, to Term Loan LendersSOFR Daily Floating Rate Loans under the Facility and third, to Term SOFR Loans under the Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans or Term SOFR Daily Floating 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, 12:00 Noon on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such LendersExcept as otherwise provided herein, if any such payment hereunder becomes due and payable, or the performance of any covenant, duty or obligation is received prior stated to 1:00 P.M., New York City timebe due or required, on a day other than a Business Day, in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment or performance shall be extended to such 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 Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit received notice from a Lender prior to a the proposed date of any borrowing of Term SOFR Loans (or, in the case of any borrowing of Base Rate Loans, prior to 12:00 noon on the date of such borrowing) that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage of such borrowing available to the Administrative AgentAgent such Xxxxxx’s share of such borrowing, the Administrative Agent may assume that such Revolving Credit Lender is making has made such amount share available to on such date in accordance with Section 2.2 (or, in the Administrative Agentcase of a borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the Administrative Agent time required by Section 2.2) and may, in reliance upon such assumption, make available to the Borrower in respect of such borrowing a corresponding amount. If In such event, if a Lender has not in fact made its share of the applicable borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(f) If the Administrative Agent notifies a Lender (any such Lender a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Payment Recipient shall promptly, but in no event later than two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error
(g) Without limiting immediately preceding clause (f), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case
(i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 2.14.
(h) Each Payment Recipient hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Payment Recipient from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. In addition, each party hereto agrees that, irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Payment Recipient under the Loan Documents with respect to each Erroneous Payment (or portion thereof that is not returned to the Administrative Agent as provided herein) (the “Erroneous Payment Subrogation Rights”)
(i) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party.
(j) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(k) Each party’s obligations, agreements and waivers under this Section 2.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(l) Subject to Section 2.21(a)(ii), 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.
(m) 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 2.14, and such funds are not made available to the Administrative Agent Borrower 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in because the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available conditions to the Administrative Agent by such Revolving Credit Lender within three Business Days applicable extension of such Borrowing Datecredit set forth in Section 5 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall notify the Borrower of the failure of return such Revolving Credit Lender funds (in like funds as received from 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 ABR Loans hereunderLender, on demand, from the Borrowerwithout interest.
(cn) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 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 Revolving Credit Loan representation by such Defaulting any Lender made on that it has obtained or will obtain 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 funds for any such relief which shall not have been vacated, discharged, stayed Loan in any particular place 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereundermanner.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans (other than Swing Line Loans) by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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 relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 Tranche A Term Loans or Tranche B Term Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of the such Tranche A Term Loans or Tranche B Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunderhereunder and under any Notes, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or 54 61 the L/C Participants, as the case may be, at the Administrative Agent’s 's office specified in subsection 13.2, in Dollars 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, 11.2 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 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such 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 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s 's Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, hereunder on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages, L/C Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Except as otherwise provided herein, 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 (whether 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 then outstanding Term Loans on a pro rata basis regardless of Type. 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 any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off condition or counterclaim ordeduction for any counterclaim, except as permitted under subsection 4.11defense, other deduction recoupment or setoff and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received. Any payment received prior to the end of such Business Day and otherwise by the Administrative Agent after 10:00 A.M. shall distribute such payment to such Lenders be deemed received on the next succeeding Business DayDay and any applicable interest or fee shall continue to accrue. 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 of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a the proposed date of any borrowing that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit 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 in respect of such borrowing 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 Revolving Credit 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 daily average greater of (A) the Federal Funds Effective Rate for the period until such Revolving Credit Lender makes such amount immediately available to the Administrative Agent. A certificate of and (B) a rate determined by the Administrative Agent submitted to any Revolving Credit Lender in accordance with respect to any amounts owing under this subsection shall be conclusive banking industry rules on interbank compensation, and (ii) in the absence case of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not a payment to be made available to by the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing DateBorrower, 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing 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 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 Administrative Agent in accordance with banking industry rules on interbank 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 Agreement: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 a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made insufficient funds are received by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory 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 Borrower parties entitled thereto in accordance with the amounts of interest and fees then due to each become a substitute Revolving Credit 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 and assume all shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or part 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 Credit Commitment Percentage or L/C Percentage, as applicable, of such Defaulting Lender. In payment on account of the Loans or participations obtained by all of the Lenders, such event, the Borrower, 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 substitute Revolving Credit Lender participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall execute be rescinded and deliverthe purchase price restored to the extent of such recovery, without interest 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, provisions of this paragraph shall not be construed to apply to (x) any Lender that at payment made by the time is 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 (and the Loans and Revolving Credit Commitment of such 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 be excluded and disregardedapply). 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 commitment fee shall accrue for documentation other than notices and the account of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(iiilike referred to in this Section 2.18(k) If at any time the Borrower shall be required to make 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 under any Loan Document made by or on behalf of the Borrower pursuant to or for and in accordance with the account express terms of this Agreement (including the application of funds arising from the existence 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)) the application of Cash Collateral provided for in Section 3.10, or (iii) above; any payment obtained by a Lender as consideration for the assignment of or (v) sale of a participation in any Defaulting Lender shall be generally unable toof its Loans or sub-participations in any L/C Exposure to any assignee or participant, or shall admit in writing its general inability to, pay its debts as they become due; other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall be required to pay any amount under any apply). The Borrower consents on behalf of itself and each other 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 Party to the Administrative Agentforegoing and agrees, to be (to the extent permitted by it may effectively do so under applicable law and law, that any Lender acquiring a participation pursuant to the extent not utilized 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 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 satisfy obligations of the Defaulting Lender owing to it) held by contrary in this Agreement, the Administrative Agent may, in escrow pursuant its discretion at any time or from time to its standard terms (including as 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 earning portion of interest), the Obligations constituting overdue interest and applied (together with any accrued interest) by it fees and Swingline Loans from time to time due and payable to make itself, any Revolving Credit 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 or other payments as and when required to be made by such Defaulting Lender hereunderwill not exceed the Total Revolving Commitments then in effect.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the any Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, Commitment Fee and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Percentages, Incremental Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment (including each prepayment) on account of principal of and interest on the Term Loans shall be made pro rata to the Term Lenders according to the respective Outstanding Amount of the Term Loans then held by the Term Lenders. The amount of each optional prepayment of the Term Loans made pursuant to Section 2.10 shall be applied as directed by the Borrower Representative in the notice described in Section 2.10 and, if no direction is given by the Borrower Representative, in the direct order of maturity. The amount of each mandatory prepayment of the Term Loans pursuant to Section 2.11 shall be applied as directed by the Borrower Representative in the notice described in Section 2.11 and, if no direction is given by the Borrower Representative, in the direct order of maturity. Each payment (including each prepayment) by the Borrower Borrowers on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata to the Revolving Lenders according to the respective outstanding principal amounts Outstanding Amount of such the 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 Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and in immediately available funds. Payments Any payments received by the Administrative Agent after such time shall be deemed to have been be received on the next Business DayDay at the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and received. Except as otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Day. If provided hereunder, 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 required on the next Business Day. In the case of any extension of any payment of principal pursuant to the next succeeding Business Day, and, with respect to payments of principalpreceding two sentences, 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 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.
(b) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing the time of any Borrowing that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing 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 Borrowers a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefortherefor (a “Funding Default”), such Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit LenderXxxxxx’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three (3) Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(c) Notwithstanding anything contained Borrowers. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower Representative prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it the Borrowers hereunder (any such Lender, a “Defaulting Lender”), that the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 Borrowers will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily Federal Funds Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrowers.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) of the Term Loans shall be allocated among the Term Loan Lenders 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 in the inverse order of the scheduled maturities 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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 Letters of Credit.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon, New York City time, on any Business Day shall be deemed to have been received on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement: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 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.
(ih) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made insufficient funds are received by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory and available to the Administrative Agent to pay amounts of principal, unreimbursed L/C Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the Borrower parties entitled thereto in accordance with the amounts of interest and fees then due 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 deliverparties, 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 Lenderssecond, any Lender that at the time is a Defaulting Lender (towards payment of principal 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 Lenderunreimbursed L/C Obligations.
(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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
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Pro Rata Treatment and Payments. (a) Each borrowing of Tranche A Revolving Credit Loans by the Borrower from the Lenders hereunder (other than Swing Line Loans) and each payment by the Borrower on account of any commitment fee in respect of the Tranche A Revolving Credit Lenders Commitments hereunder shall be mademade pro rata according to the respective Tranche A Revolving Credit Percentages of the Lenders. Each borrowing of Tranche B Revolving Credit Loans by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee in respect of the Tranche B Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche B Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Tranche A Revolving Credit Loans shall be allocated made first to the repayment of Swing Line Loans before any payment may be made on account of the principal of the Tranche A Revolving Credit Loans. Subject to the immediately foregoing sentence, each payment (including each prepayment) by the Administrative Agent Borrower on account of the principal of and interest on the Tranche A Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of such the Tranche A Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of the principal of and interest on any Term the Tranche B Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Tranche B Revolving Credit Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunderhereunder and under the Notes, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-set off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s 's office specified in subsection 13.210.2, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s 's Tranche A Revolving Credit Commitment Percentage or Tranche B Revolving Credit Commitment Percentage, as applicable, of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything . Nothing contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.2.12
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment (including prepayments) in respect of principal or interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Lenders pro rata according to the respective amounts then due and owing to such Lenders.
(b) Each optional prepayment of the Term Loans shall be applied as specified by the Borrower. Each mandatory prepayment by the Borrower on account of principal of and interest on the Term Loans shall be applied first, to any installments coming due within 12 months of the date of such prepayment in direct order of maturity and, second, ratably to the respective remaining installments thereof. 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 any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving 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.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Borrowing Date, the Administrative Agent shall notify give notice of such fact to 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, Loans and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(i) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by among the Administrative Agent Lenders pro rata according to based on the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. .
(ii) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Term Loans Loans, if any, shall be allocated by among the Administrative Agent Lenders pro rata according to based on the respective outstanding principal amounts of the 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 as specified in the Incremental Term Loan LendersAmendment for such 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:writing by the Borrower prior to the date of any payment being made 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 Business Days of such 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
(ig) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.13(e), the Borrower shall have the right to seek one 2.13(f), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent and the Borrower to each become a substitute Revolving Credit Lender and assume all or part may, in its discretion (notwithstanding any contrary provision of the Revolving Credit Commitment of such Defaulting Lender. In such eventthis Agreement), the Borrower, apply any amounts thereafter received by the Administrative Agent and any such substitute Revolving Credit or the Issuing 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 Lender to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under 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 to satisfy Sections until all such unsatisfied obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderare fully paid.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Section 2.18(c), each payment (other 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 amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders. The application of any prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each prepayment to be applied to Term Loans shall be allocated among the Term Loan Lenders holding such Term Loans pro rata based on the principal amount of the Term Loans held by each Term Loan Lender and shall be applied to the scheduled quarterly installments due on the Term Loans pursuant to Section 2.3 pro rata based on the remaining outstanding principal amount of such installments.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan Revolving Credit Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Spanish Broadcasting System of Puerto Rico Inc /Pr/)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the applicable Lenders pro rata according to the respective amounts then due and owing to the applicable Lenders.
(b) Each payment on account of principal of the Term Loans outstanding under the Term Loan Facility 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 (i) in order of maturity for the next four installments and (ii) thereafter ratably over the remaining 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) 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. Each payment by the Borrower on account of principal of and interest on any Term Swing Line Loans shall be allocated by the Administrative Agent pro rata according made to the respective outstanding principal amounts Swing Line Lender (to be applied, if applicable, as provided in Section 2.7(d)).
(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 Term Loans then held (except in the case of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the Term Loan Lenders. date of such payment on the amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been on the next succeeding following 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted by applicable law and Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the extent not utilized Administrative Agent by the Borrower within three 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) Upon receipt by the Administrative Agent of payments on behalf of Lenders, the Administrative Agent shall promptly distribute such payments to satisfy obligations of the Defaulting Lender owing to it) held or Lenders entitled thereto, in like funds as received by the Administrative Agent. Notwithstanding the foregoing, if the Administrative Agent in escrow receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in Section 8(f), or otherwise) (including the amount of such payment, the “Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Term Loan Lender, Revolving Credit Lender or L/C Participant), and applied 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) (together with the amount of such obligations in default, the “L/C Participation Defaulted Amount”), the Administrative Agent may withhold from the Payment Amount an amount up to the L/C Participation Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the L/C Participation Defaulted Amount or, if applicable, toward reimbursement of 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor the L/C Participation Defaulted Amount.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments payable pursuant to Section 2.5(a) hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment of the Borrower on account of any commitment fee payable pursuant to Section 2.5(b) shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. On the Closing Date in the case of the Initial Term Loans, and after the Closing Date but on or prior to the Additional Term Loan Borrowing Date, in the case of the Additional Term Loans, the borrowing by the Borrower from the Term Loan Lenders hereunder shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 prepaymenti) by the Borrower on account of principal of and interest on any Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders, or (ii) Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving Credit Lenders. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-set off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s 's office specified in subsection 13.2Section 11.2, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Applicable Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 extensionextension and with respect to payments of fees, such fees accruing during such extension shall be payable on the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Working Day, the maturity of such payment thereof shall be extended to the next succeeding Business Working 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 Working Day.
(b) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing Borrowing Date that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Applicable Commitment Percentage of the borrowing on such borrowing date available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit Lender is making has made 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 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 a date after such Borrowing Date thereforDate, such Revolving Credit Lender shall pay to the Administrative Agent, Agent on demand, such demand an amount with interest thereon at a rate equal to the product of (i) the daily average Federal Funds Effective Rate for during such period, times (ii) the period until amount of such Revolving Credit Lender makes Lender's Applicable Commitment Percentage of such amount borrowing, times (iii) a fraction the numerator of which is the number of days that elapse from and including such Borrowing Date to the date on which such Lender's Applicable Commitment Percentage of such borrowing shall have become immediately available to the Administrative AgentAgent and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this subsection Section 4.7 shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit 's Applicable Commitment Percentage of such borrowing is not in fact made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Alternate Base Rate Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made(other than with respect to any Foreign Currency Loan), each payment by the Borrower on account of any commitment fee, any participation fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(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 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 Credit Commitment Percentages Loans (other than the Foreign Currency Loans) shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving Lenders.
(d) Each borrowing by the Borrower of Foreign Currency Loans shall be made pro rata according to the Foreign Currency Commitments of the Fronting Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Foreign Currency Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Foreign Currency Loans then held by the Term Loan Fronting Lenders. .
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, feesfees or otherwise (other than in respect of the principal or interest on, Reimbursement Obligations or otherwisethe fronting fee with respect to, the Foreign Currency Loans), shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding Lenders, at the Funding Office, in Dollars and in immediately available funds. 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 Loans 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 Fronting Lenders, at the office, and prior to the time for payment for the relevant Foreign Currency, set forth on the Administrative Schedule. The Administrative Agent or the L/C ParticipantsForeign Currency Agent, as applicable, shall distribute such payments to each relevant Lender or Fronting Lender, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 9.7. If any payment hereunder (other than payments on the Eurodollar Loans or Foreign Currency 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 Foreign Currency Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement: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 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.
(ih) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.10, 2.17(e), 2.17(f), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent and the 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 eventmay, the Borrower, the Administrative Agent and in its discretion (notwithstanding 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 contrary provision of this subsection 4.8(c)(ivAgreement), shall include any Revolving Credit Lender (i) that has commenced apply any caseamounts thereafter received by the Administrative Agent, 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 Swingline 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 Fronting Lender or the acts set forth in clause (i), (ii), or (iii) above; or (v) any Defaulting Issuing 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 Lender to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under such amount to the Administrative AgentSections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, to be (to the extent permitted by applicable law and to the extent not utilized by the Administrative Agent to satisfy application to, any future funding obligations of such Lender under any such Section, in the Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
Appears in 1 contract
Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Pro Rata Treatment and Payments. (ai) Each borrowing of Revolving Credit Loans by the Borrower or the Foreign Subsidiary Borrowers from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the relevant Lenders; provided that each borrowing by the Foreign Subsidiary Borrowers of Multicurrency Revolving Credit 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. ; provided, further, that the Multicurrency Sublimit shall be reduced pro rata with any reduction in the Revolving Commitments.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on or any Revolving Credit Loans shall be 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 Foreign Subsidiary Borrower on account of principal of and interest on any Term the Dollar Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Dollar Revolving Loans then held by the Term Loan Dollar Revolving Lenders and 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 Multicurrency Lenders. .
(c) All payments (including prepayments) to be made by the Borrower or any Foreign Subsidiary Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars and in immediately available funds (or, in the case of L/C Obligations principal or interest relating to Multicurrency Revolving Loans, prior to 11:00 A.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 any Designated Foreign Currency, such Designated the relevant Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bd) Unless the Administrative Agent or the Multicurrency 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 Revolving Credit Commitment Percentage 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 Revolving Credit 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 in respect of such borrowing 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 Revolving Credit 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 (X) the Federal Funds Effective Rate and (Y) 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 equal determined by the Multicurrency Administrative Agent to be the daily average Federal Funds Effective Rate for the period cost to it of funding such amount until such Revolving Credit 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 Revolving Credit Lender with respect to any amounts owing under this subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent or the Multicurrency Administrative Agent, as applicable, by such Revolving Credit Lender within three Business Days of after such Borrowing Date, the Administrative Agent shall notify or the Borrower of the failure of such Revolving Credit Lender to make such amount available to the Multicurrency Administrative Agent and the Administrative Agent 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 Loans hereunderLoans, 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.
(ce) Notwithstanding anything contained Unless the Administrative Agent or the Multicurrency Administrative Agent, as applicable, shall have been notified in this Agreement:
(i) If at writing by the Borrower or the relevant Foreign Subsidiary Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have or the right to seek one relevant Foreign Subsidiary Borrower hereunder that the Borrower or more Persons reasonably satisfactory the relevant Foreign Subsidiary Borrower will not make such payment to the Administrative Agent and or the 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 eventMulticurrency Administrative Agent, the Borroweras applicable, the Administrative Agent and any or the Multicurrency Administrative Agent, as applicable, may assume that the Borrower or the relevant Foreign Subsidiary Borrower is making such substitute Revolving Credit Lender shall execute and deliverpayment, and the Administrative Agent or the Multicurrency Administrative Agent, as applicable, may, but shall not be required to, in reliance upon such Defaulting 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 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 shall thereupon be deemed to have executed 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 Rate and delivered, an appropriately completed Assignment and Acceptance to effect such substitution.
(ii) In determining in the Required Lenderscase of amounts denominated in Foreign Currencies, any Lender that such amount with interest thereon at a rate per annum determined by the time is a Defaulting Lender (and Multicurrency Administrative Agent to be the Loans and Revolving Credit Commitment cost to it of funding such Defaulting Lender) shall be excluded and disregardedamount. 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 Nothing herein shall be deemed to constitute a Revolving Credit Loan by such Defaulting Lender made on limit the date rights 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 Multicurrency Administrative Agent to satisfy obligations of or any Lender against the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of interest), and applied (together with Borrower or 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 Defaulting Lender hereunderForeign Subsidiary Borrower.
Appears in 1 contract
Samples: Credit Agreement (Kadant Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Subject to Section 2.18(c), each payment (other 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 amounts of such obligations owing to the Lenders pro rata according to the respective 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 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)) 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account in respect of principal Reimbursement Obligations in connection with any Letter of and interest on any Term Loans Credit shall be allocated by the Administrative Agent pro rata according made to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. All Issuing Lender.
(d) Subject to Section 2.20, all payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to Unless the Administrative Agent and shall have been notified in writing by the Borrower prior to each become a substitute Revolving Credit Lender and assume all or part the date 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 payment being made hereunder 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 Business Days of such 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made(other than Swing Line Loans), 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 Revolving Credit Percentages of the relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Revolving Credit Commitments Loans and each payment in respect of fees payable hereunder shall be allocated by applied to the Administrative Agent, and any reduction amounts of such obligations owing to the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, pro rata according to the relevant Revolving Credit Commitment Percentages of respective amounts then due and owing to the Revolving Credit Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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.
(c) The application of any payment of Loans under the Revolving Credit Facility (including each prepaymentprepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated by the Administrative Agent pro rata according made, first, to the respective outstanding principal amounts of the Term Base Rate Loans then held by the Term Loan Lenders. and, second, to LIBOR Loans.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.11:00 A.M., New York City Denver time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Borrower after 11:00 A.M., Denver time, on any Business Day may, at the option of the Administrative Agent after such time shall Agent, be deemed to have been received made on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. If any payment hereunder (other than payments on the Eurodollar LIBOR 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 LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the Revolving Credit Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of in the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant Lenders’ respective Revolving Credit Commitment Percentages Percentage. Each payment of interest in respect of the Revolving Credit Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan 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.
(c) The application of any payment of Loans (including optional and mandatory prepayments) shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each payment of the Loans shall be accompanied by accrued interest to the date of such payment on the amount paid. Subject to Section 8, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowing, interest and fees then due hereunder, such funds shall be applied (i) first, to pay 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, to pay principal and unreimbursed L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and/or unreimbursed L/C Borrowings, as applicable, then due to such parties.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M.12:00 Noon, New York City time, on a Business Day, in like funds as received prior to the end of such any Business Day and otherwise the Administrative Agent shall distribute such payment be deemed to such Lenders have been 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 of such payment thereof 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 accrue at the then applicable rate during such extension.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything 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 prorata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three 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 contained in this Agreement:Section shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(ig) 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.
(h) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.3(c), the Borrower shall have the right to seek one 2.14(e), 2.14(j), 3.3 or more Persons reasonably satisfactory to 9.6, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 for the benefit of the Administrative Agent, the Swingline Lender or the applicable Issuing Lender, then the Borroweras applicable, so long as it is then permitted to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying such amount Lender’s obligations to the Administrative Agent, to be such Swingline Lender and such Issuing Lender until all such unsatisfied obligations are fully paid and/or (to the extent permitted by applicable law ii) hold any such amounts in a segregated account as Cash Collateral for, and to the extent not utilized by the Administrative Agent to satisfy application to, any future funding obligations of such Lender under any such Section, in the Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow its discretion.
(i) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to its standard terms (including as to the earning Section 9.6 are several and not joint. The failure of interest), and applied (together with any accrued interest) by it from time to time Lender to make any Revolving Credit Loan or to fund any such participation or to make any such payment on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participations or to make its payment under Section 9.6.
(j) If any Lender shall obtain on account of the principal of or interest on any of its Loans or its participations in Letters of Credit or Swingline Loans any payment (whether voluntary, involuntary or through the exercise of any right of setoff or otherwise) in excess of its ratable share thereof (or other payments as share contemplated hereunder), then the Lender shall (a) notify the Administrative Agent of such fact and when required to be (b) purchase from the other Lenders such participations in such Loans made by them and/or subparticipations in such participations in Letters of Credit or Swingline Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, ratably with each of such other Lenders; 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) this Section shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) any payment obtained by a Lender hereunderas consideration for any assignment or participation pursuant to Section 10.6 or (z) the application of Cash Collateral provided for in Section 2.22. The Borrower consents to the foregoing and agrees that any Lender acquiring a participation pursuant to this Section may, to the fullest extent permitted by applicable Requirement of Law, exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive absent manifest error) of participations purchased under this Section and will in each case notify the applicable Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
Appears in 1 contract
Samples: Revolving Credit Agreement (Iconix Brand Group, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment (other 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 amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit Term Loans then held by due and owing to the Revolving Credit Term Loan 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 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 any Term the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Credit Loans then held by the Term Loan Revolving Credit Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.a
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Subject to Section 2.31 (a) each borrowing by any Borrower of Dollar Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be mademade pro rata according to the respective Borrowing Percentages of the relevant Lenders, (b) each payment by the any Borrower on account of any commitment facility fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit relevant Lenders and (c) each borrowing by any Borrower of Multicurrency Loans from the Multicurrency Lenders hereunder and any reduction of the Multicurrency Subcommitments of the Multicurrency Lenders shall be made pro rata according to the respective Multicurrency Percentages of the Multicurrency Lenders. Each .
(b) Subject to Section 2.31, (a) each payment (including each prepayment) by the any Borrower on account of principal of and interest on any the Dollar Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Dollar Revolving Loans then held by the Term Loan Lenders and (b) each payment (including each prepayment) by any Borrower on account of principal of and interest on the Multicurrency Loans shall be made pro rata according to the respective outstanding principal amounts of the Multicurrency Loans then held by the Multicurrency Lenders. .
(c) All payments (including prepayments) to be made by the Borrower hereunderany Borrower, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off deduction for any defense, recoupment, setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2its Funding Office, in Dollars (based on the Dollar Equivalent thereof in the case of fees payable under Section 2.14(c) with respect to Letters of Credit denominated in Foreign Currencies) and in immediately available funds (or, in the case of L/C Obligations 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 any Designated Foreign Currency, such Designated the relevant Foreign Currency and, whether in Dollars or any Designated Foreign Currency, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bd) 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 Revolving Credit Commitment Percentage share 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 relevant 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 at a rate equal to the daily average Federal Funds Effective Rate Overnight Rate, plus any applicable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 (i) in the case of amounts denominated in Dollars, such amount with interest thereon at the rate per annum applicable to ABR Loans hereunderLoans, 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.
(ce) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the applicable Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it such Borrower hereunder (any that such Lender, a “Defaulting Lender”)Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that such Borrower is making such payment, and the Administrative Agent may, but shall have not be required to, in reliance upon such assumption, make available to the right to seek one or more Persons reasonably satisfactory relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent and by the applicable Borrower to each become a substitute Revolving Credit Lender and assume all or part of the Revolving Credit Commitment of within three Business Days after such Defaulting Lender. In such event, the Borrowerdue date, the Administrative Agent and 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 substitute Revolving Credit Lender amount with interest thereon at the rate per annum equal to the Overnight Rate. Nothing herein 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 substitutionlimit the rights of the Administrative Agent or any Lender against the Borrowers or any of them.
(iif) In determining The obligations of the Required LendersLenders 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 that at the time is a Defaulting Lender (and the Loans and Revolving Credit Commitment of to make any Loan, to fund any 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 participation or to make any payment under Section 8.7 on any Loan Document to or for the account date required hereunder shall not relieve any other Lender 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 corresponding obligation to make do so on such payment against the obligation of such Defaulting Lender to make such Loan with respect to which there has been a Default. In such eventdate, 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 no 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 responsible for the account failure of such Defaulting Lender, then the Borrower, any other Lender to 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 Agentmake its Loans, to be (to the extent permitted by applicable law and to the extent not utilized by the Administrative Agent to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to purchase its standard terms (including as to the earning of interest), and applied (together with any accrued interest) by it from time to time participation or to make any Revolving Credit Loans or other payments as and when required to be made by such Defaulting Lender hereunderits payment under Section 8.7.
Appears in 1 contract
Samples: Credit Agreement (Kennametal Inc)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant Revolving Credit respective Commitment Percentages of the Revolving Credit Lenders. Each payment under this Credit Agreement or any Credit Document shall be applied (including each prepaymenti) first, to any Fees then due and owing, (ii) second, to interest then due and owing in respect of the Loans to the Borrower and (iii) third, to principal then due and owing hereunder and under the Loans to the Borrower. Each payment on account of the Commitment Fees or the Letter of Credit Fees shall be made pro rata in accordance with the respective amounts due and owing. Each payment (other than voluntary repayments and mandatory prepayments) by the Borrower on account of principal of and interest on any Revolving Credit the Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts due and owing hereunder in the currency in which such amount is denominated and in such funds as are customary at the place and time of payment for the settlement of international payments in such Revolving Credit currency. Without limiting the terms of the preceding sentence, accrued interest on any Foreign Currency Loans then held by shall be payable in the Revolving Credit Lenderssame Foreign Currency as such Loan. Each payment (including each prepayment) by the Borrower voluntary repayment and mandatory prepayment on account of principal of and interest on any Term the Loans shall be allocated applied in accordance with Section 2.8. With respect to Competitive Loans, if the Borrower fails to specify the particular Competitive Loan or Loans as to which any payment or other amount should be applied and it is not otherwise clear as to the particular Competitive Loan or Loans to which such payment or other amounts relate, or any such payment or other amount is to be applied to Competitive Loans without regard to any such direction by the Administrative Agent Borrower, then each payment or prepayment of principal on Competitive Loans and each payment of interest or other amount on or in respect of Competitive Loans, shall be allocated pro rata according to among the respective relevant Competitive Loan Lenders in accordance with the then outstanding principal amounts of the Term Loans then held by the Term Loan Lenderstheir respective Competitive Loans. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, interest and fees shall be made without defense, set-off or counterclaim or, (except as permitted under subsection 4.11, other deduction provided in Section 2.18(b)) and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, Agent for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2, Section 10.2 in Dollars or, immediately available funds (or at such other location mutually agreed to by the Administrative Agent and the Borrower with respect to Foreign Currency Loans) and (A) in the case of L/C Obligations Loans or other amounts denominated in any Designated Dollars, shall be made in Dollars not later than 1:00 P.M. on the date when due and (B) in the case of Loans or other amounts denominated in a Foreign Currency, shall be made in such Designated Foreign Currency and, whether in Dollars or any Designated Foreign Currency, in immediately available funds. Payments received not later than the Applicable Time specified by the Administrative Agent after such time shall be deemed to have been received on the next Business Daydate when due. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders entitled thereto promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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, 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 LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.
Appears in 1 contract
Samples: Credit Agreement (Hni Corp)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the a Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the a Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective First Lien Tranche C Term Percentages, Second Lien Tranche C Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the a Borrower on account of principal of and interest on any Revolving Credit Loans shall be 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 Tranche C Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the First Lien Tranche C Term Loans and Second Lien Tranche C Term Loans then held by the relevant Tranche C Term Loan Lenders, as applicable. The amount of each principal prepayment of the Tranche C Term Loans shall be applied to reduce the then remaining installments of the First Lien Tranche C Term Loans and Second Lien Tranche C Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Tranche C 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 Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower Borrowers hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 relevant 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the relevant Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by a Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it such Borrower hereunder (any that such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 will not 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 to satisfy obligations of the Defaulting Lender owing to it) held by may assume that such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 such Borrower within three 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst either Borrower.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, Loans and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(i) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be allocated by among the Administrative Agent Lenders pro rata according to based on the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit Lenders. .
(ii) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Term Loans Loans, shall be allocated by among the Administrative Agent Lenders pro rata according to based on the respective outstanding principal amounts of the 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 LendersAmendment 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:writing by the Borrower prior to the date of any payment being made 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 Business Days of such 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.
(ig) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.13(e), the Borrower shall have the right to seek one 2.13(f), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent and the Borrower to each become a substitute Revolving Credit Lender and assume all or part may, in its discretion (notwithstanding any contrary provision of the Revolving Credit Commitment of such Defaulting Lender. In such eventthis Agreement), the Borrower, apply any amounts thereafter received by the Administrative Agent and any such substitute Revolving Credit or the Issuing 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 Lender to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under 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 to satisfy Sections until all such unsatisfied obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderare fully paid.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by made pro rata according to the Administrative Agentrespective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and each casepayment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Lenders, pro rata according to the relevant Revolving Credit Commitment Percentages respective amounts then due and owing to such Lenders.
(b) Subject to Section 2.12(d), each optional and mandatory prepayment on account of principal of and interest on the Term Loans pursuant to Section 2.11 or 2.12 shall be applied to any installments thereof in direct order of maturity. Amounts repaid or prepaid on account of the Revolving Credit Lenders. Term Loans may not be reborrowed.
(c) Each payment (including each prepaymentprepayments) by the Borrower on account of principal of and interest on any the Revolving Credit Loans shall be 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 made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving 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.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made in Dollars without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2, in Dollars 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 CurrencyFunding Office, 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the relevant Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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, Agent on demand, such amount with interest thereon thereon, at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive presumptively correct in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after such Borrowing Date, the Administrative Agent shall notify give notice of such fact to 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 Loans hereunderunder 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.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans purchase by the Borrower from Lenders pursuant to subsection 2.3 of Balance-Based Loans under the Revolving Credit Lenders hereunder Tranche A Commitments or the Tranche B Commitments, as the case may be, each borrowing by the Borrowers of Rate- Based Loans under the Tranche A Commitments or the Tranche B Commitments, as the case may be, and any reduction of the Tranche A Commitments or the Tranche B Commitments, as the case may be, shall be made, each made pro rata according to the respective Tranche A Commitment Percentages or the Tranche B Commitment Percentages of the Lenders. Each payment by the a Borrower on account of any commitment fee in respect of under the Revolving Credit Tranche A Commitments hereunder or the Tranche B Commitments, as the case may be, shall be 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, made pro rata according to the relevant Revolving Credit respective Tranche A Commitment Percentages or the Tranche B Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the a Borrower on account of principal of and interest on any Revolving Credit the Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal Principal Amounts of the Loans or amounts of such Revolving Credit Loans interest, as the case may be, then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of due and interest on any Term Loans shall be allocated by the Administrative Agent pro rata according owing to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. .
(b) All payments (including prepayments) to be made by the a Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-set off or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to at the Administrative AgentPayment Office, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent’s office specified in subsection 13.2Lenders, in Dollars orand in immediately available funds. Each payment or prepayment of Loans shall be accompanied by (i) a payment notice in writing or by fax in the form of Exhibit F-3 and shall include the information required as set forth therein, including the information to be provided by the Collateral Agent as set forth therein and (ii) a Tranche A Borrowing Base Certificate, in the case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign Currency and, whether in Dollars repayments of Tranche A Loans or any Designated Foreign CurrencyTranche A Swing Line Loans or a Tranche B Borrowing Base Certificate, in the case of repayments of Tranche B Loans or Tranche B Swing Line Loans, in each case dated as of the close of business on the Business Day immediately available funds. Payments received preceding such Borrowing Date or as of such Borrowing Date, duly completed by HomeSide, the applicable Borrower and the Collateral Agent in the manner required by the Administrative Agent after such time shall be deemed to have been received on the next Business DayBorrower Security Agreements. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 For the purposes of determining the obligations of the Borrowers hereunder with respect thereto, any payment by either Borrower received by the Administrative Agent after 12:00 noon on a Eurodollar Loan becomes the due and payable on a day other than a Business Day, the maturity of such payment date thereof shall be extended deemed to be received on 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.
(bc) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing Borrowing Date that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing 55 49 available to the Administrative AgentAgent on such Borrowing Date, the Administrative Agent may may, in its sole discretion, 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 applicable 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 such Borrowing Date thereforDate, such Revolving Credit Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing Date, the Administrative Agent shall notify the Borrower of the failure of such Revolving Credit Lender also be entitled, upon five Business Days' notice, to make recover such amount (less any amounts theretofore made available to the Administrative Agent and the Administrative Agent shall also be entitled to recover by such amount Lender in respect of such borrowing) with interest thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from the Borrowerapplicable Borrower to which such amount was advanced.
(cd) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at any time writing by HomeSide prior to a Revolving Credit Lender shall date on which a payment of principal, interest or fees is due from either Borrower hereunder that such Borrower will not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory amount available to the Administrative Agent and the Borrower to each become a substitute Revolving Credit Lender and assume all or part of the Revolving Credit Commitment of on such Defaulting Lender. In such event, the Borrowerdue date, the Administrative Agent and any may, in its sole discretion, assume that 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 Borrower 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 making such amount available to the Administrative Agent, to be (to the extent permitted by applicable law and to the extent not utilized by the Administrative Agent may, in reliance upon such assumption, make available a corresponding amount to satisfy obligations of the Defaulting Lender owing Lenders entitled thereto. If such amount is not made available to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as by the required time on the due date therefor, the Administrative Agent shall notify each Lender of such failure, and each Lender shall pay to the earning Administrative Agent, on demand, the portion of 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 such amount received by such Defaulting Lender hereunderwith interest thereon at a rate equal to the Federal Funds Effective Rate for the period from the date of receipt of such amount by such Lender 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 subsection shall be conclusive in the absence of manifest error.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the any Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Parent Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(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 any Revolving Credit Loans shall be 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 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 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 Revolving Lenders.
(d) Each payment (including each prepayment) by any Borrower on account of principal of and interest on any Foreign Currency Loan shall be made pro rata according to the respective outstanding principal amounts of such Foreign Currency Loan then held by the applicable Revolving Lenders.
(e) All payments (including prepayments) to be made by the any Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and in immediately available funds. Payments received 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 after such Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time shall be deemed to have been received for payment for the relevant currency, set forth on the next Business DayAdministrative Schedule. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 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, 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 applicable 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 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of such Borrowing DateLender, 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 equal to ABR Loans hereunderthe 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.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
writing by any Borrower prior to the date of any payment due to be made by such Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that 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 such Borrower within three 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 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. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against such Borrower.
(h) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.18(f), 2.20(e), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent may, in its discretion and the 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 eventnotwithstanding any contrary provision hereof, the Borrower, (i) apply any amounts thereafter received by 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 Lender for 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 benefit of the Administrative Agent, to be (to the extent permitted by applicable law and to Swingline Lender or the extent not utilized by the Administrative Agent 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 Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
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Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Tranche A Term Percentages, Delayed Draw Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Mandatory prepayments of the Term Loans required by Section 2.11 shall be made pro rata according to the respective outstanding amounts of the Term Loans, provided that Incremental Term Loans may be prepaid on a less favorable basis if specified in the applicable Incremental Facility Activation Notice. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Tranche A Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Tranche A Term Loans then held by the Tranche A Term Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Delayed Draw Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts amount of such Revolving Credit the Delayed Draw Term Loans then held by the Revolving Credit Delayed Draw Term Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any the Incremental Term Loans shall be allocated made pro rata according to the respective outstanding principal amount of the Incremental Term Loans then held by the Administrative Agent Incremental Term Lenders. The amount of each mandatory principal prepayment of the Term Loans shall be applied, first, to reduce the then remaining installments of the Tranche A Term Loans, Delayed Draw Term Loans and Incremental Term Loans, as the case may be, occurring within the next 12 months, in 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. The amount of each optional principal prepayment of the Term Loans shall be applied to reduce the outstanding principal amount of the Tranche A Term Loans, Delayed Draw Term Loans and the Incremental Term Loans as directed by the Borrower. 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 Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 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, 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning of 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 Defaulting Lender hereunder.daily average Federal
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Incremental Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Incremental Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Incremental Term Loans then held by the Incremental Term Loan Lenders. The amount of each principal prepayment of the Incremental Term Loans shall be applied to reduce the then remaining installments of the Incremental Term Loans, as the case may be, pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid on account of the Incremental Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be allocated by the Administrative Agent made 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 prepaymentd) 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 Term Loans then held by the Term Loan Lenders. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 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 holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2applicable Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. If any payment hereunder (other than payments on the Eurodollar LIBOR 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 LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(b) 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 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Loans hereunder, on demand, from the Borrower.
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a Revolving Credit Loan required to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and the 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 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 to satisfy obligations of the Defaulting Lender owing to it) held by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunder.preceding
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders Lenders, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. Each payment in respect of principal or interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(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 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 any the Revolving Credit Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such the Revolving Credit Loans then held by the Revolving Credit 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 Letters of Credit.
(d) The application of any payment of Loans under any Facility (including each prepaymentoptional and mandatory prepayments) by the Borrower on account of principal of and interest on any Term Loans shall be allocated 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 the Administrative Agent pro rata according accrued interest to the respective outstanding principal amounts date of such payment on the Term Loans then held by the Term Loan Lenders. amount paid.
(e) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such time 12:00 Noon, New York City time, on any Business Day shall be deemed to have been received made on the next following Business Day. The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(bf) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average Federal Funds Effective Rate 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage 's share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect the Facility Fee or Letter of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agentfee, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders under any Facility, shall be allocated by the Administrative Agent, in each case, made pro rata according to the relevant respective Term Loan Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the relevant Lenders. Each payment of interest in respect of the Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
(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 Revolving Credit 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. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts Series 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 made pro rata according to the respective outstanding principal amounts of the Term Loans in such Series then held by the 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, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.2:00 pm, local time in New York City timeCity, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Payment Office, in Dollars 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, and in immediately available funds. Payments received Any payment made by the Administrative Agent Borrower after such 2:00 pm, local time in New York City, on any Business Day shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to 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 prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding 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, 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 Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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.
(be) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a borrowing of Loans that such Revolving Credit Lender will not make the amount that would constitute its Revolving Credit Commitment Percentage share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving Credit 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 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 at a rate equal to the daily average 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit LenderXxxxxx’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderBase Rate Loans, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 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 extent permitted Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by applicable law the Borrower within three 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 utilized 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 to satisfy obligations of Agent, at the Defaulting Lender owing to itFederal Funds Rate from the due date until (but not including) held by the date on which the Administrative Agent in escrow makes such payments to such Lender. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to its standard terms events or proceedings of the nature referred to in Section 8.1(f), or otherwise) (including the amount of such payment, the “Lender Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as to the earning of interesta Revolving Credit Lender or L/C Participant), and applied 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) (together with 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 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 Person that has previously reimbursed such Defaulting Issuing Lender hereunderfor the Defaulted Amount.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the respective Closing Date Term Percentages, Tender Offer Term Percentages, Revolving Percentages or percentage of relevant Revolving Credit Commitment Percentages Incremental Term Commitments (or, at any time after any Incremental Term Commitments have been utilized, the percentage which the aggregate principal amount of a Lender’s Incremental Term Loans then outstanding constitutes of the Revolving Credit aggregate principal amount of the Incremental Term Loans then outstanding), as the case may be, of the relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit the Term Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of such Revolving Credit the Term Loans then held by the Revolving Credit 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.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term the Revolving Loans shall be allocated by the Administrative Agent made pro rata according to the respective outstanding principal amounts of the Term Revolving Loans then held by the Term Loan Revolving Lenders. .
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees, Reimbursement Obligations fees or otherwise, shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and 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 such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, the Lenders promptly upon receipt in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business Dayreceived. 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 of such payment thereof 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.
(be) 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 Revolving Credit Commitment Percentage share 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 at a rate equal to the daily average 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 Revolving Credit Table of Contents 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days 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 Base Rate Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cf) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:
(i) If at writing by the Borrower prior to the date of any time a Revolving Credit Lender shall not make a Revolving Credit Loan required payment due to be made by it hereunder (any such Lender, a “Defaulting Lender”), the Borrower shall have the right to seek one or more Persons reasonably satisfactory to the Administrative Agent and hereunder that the 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 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 will not 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 to satisfy obligations of may assume that the Defaulting Lender owing to it) held by Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in escrow 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 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 its standard terms (including as the preceding sentence, such amount with interest thereon at the rate per annum equal to the earning daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of interest), and applied (together with the Administrative Agent or 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 Defaulting Lender hereunderagainst the Borrower.
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Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans by the Borrower or the Co-Borrower from the Revolving Credit Lenders hereunder shall be madehereunder, each payment by the Borrower or the Co-Borrower on account of any commitment fee, any participation fee in respect of the Revolving Credit Commitments hereunder shall be 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, made pro rata according to the relevant respective Term Percentages or Revolving Credit Commitment Percentages Percentages, as the case may be, of the Revolving Credit relevant Lenders. .
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loans shall be allocated by or 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 Co-Borrower on account of principal of and interest on any the Term Loans shall be allocated by the Administrative Agent 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 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. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower or the Co-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.
(d) [Reserved].
(e) All payments (including prepayments) to be made by the Borrower or the Co-Borrower hereunder, whether on account of principal, interest, feesfees or otherwise (other than in respect of the principal or interest on, Reimbursement Obligations or otherwisethe fronting fee with respect to, the Foreign Currency Loans), shall be made without set-off setoff or counterclaim or, except as permitted under subsection 4.11, other deduction and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may beLenders, at the Administrative Agent’s office specified in subsection 13.2Funding Office, in Dollars 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, and in immediately available funds. Payments received All payments (including prepayments) to be made by the Administrative Agent after such time Borrower or the Co-Borrower hereunder on account of principal or interest on, or the fronting fee with respect to, the Foreign Currency Loans shall be deemed to have been received made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the next Business Daydue date thereof to the Foreign Currency Agent, for the account of the Revolving Lenders, at the office, and prior to the time for payment for the relevant Foreign Currency, set forth on the Administrative Schedule. The Administrative Agent or Foreign Currency Agent, as applicable, shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day, each relevant Lender promptly upon receipt in like funds as received prior received, net of any amounts owing by such Lender pursuant to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders on the next succeeding Business DaySection 9.7. If any payment hereunder (other than payments on the Eurodollar Loans or Foreign Currency 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 Foreign Currency Loan becomes due and payable on a day other than a Business Day, the maturity of such payment thereof 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 509265-1496-1626614997-Active.24788754.1135668272.3 any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(bf) 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 Revolving Credit Commitment Percentage share 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 or the Co-Borrower, as applicable, 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 daily average Federal Funds Effective greater of (i) the 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 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 subsection paragraph shall be conclusive in the absence of manifest error. If such Revolving Credit Lender’s Revolving Credit Commitment Percentage share of such borrowing is not made available to the Administrative Agent by such Revolving Credit Lender within three Business Days of after 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 Loans hereunderunder the relevant Facility, on demand, from the Borrower.
(cg) Notwithstanding anything contained Unless the Administrative Agent shall have been notified in this Agreement:writing by the Borrower or the Co-Borrower, as applicable, prior to the date of any payment due to be made by the Borrower or the Co-Borrower hereunder that the Borrower or the Co-Borrower, as applicable, will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or the Co-Borrower, as applicable, 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 Co-Borrower, as applicable, within three 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 NYFRB Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower or the Co-Borrower.
(ih) If at any time a Revolving Credit Lender shall not fail to make a Revolving Credit Loan any payment required to be made by it hereunder (any such Lender, a “Defaulting Lender”pursuant to Section 2.7(b), the Borrower shall have the right to seek one 2.7(c), 2.17(e), 2.17(f), 3.4(a) or more Persons reasonably satisfactory to 9.7, then the Administrative Agent and the 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 eventmay, the Borrower, the Administrative Agent and in its discretion (notwithstanding 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 contrary provision of this subsection 4.8(c)(ivAgreement), shall include any Revolving Credit Lender (i) that has commenced apply any caseamounts thereafter received by the Administrative Agent, proceeding the Swingline Lender 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 Issuing 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 Lender to borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by paying Lender’s obligations under such amount to the Administrative AgentSections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, to be (to the extent permitted by applicable law and to the extent not utilized by the Administrative Agent to satisfy application to, any future funding obligations of such Lender under any such Section, in the Defaulting Lender owing to itcase of each of clauses (i) held and (ii) above, in any order as determined by the Administrative Agent in escrow pursuant to its standard terms (including as to the earning of 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 Defaulting Lender hereunderdiscretion.
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Samples: Credit Agreement (Allscripts Healthcare Solutions, Inc.)
